EXHIBIT 1.01
XCEL ENERGY INC.
(a Minnesota corporation)
FORM OF
UNDERWRITING AGREEMENT
FOR DEBT SECURITIES
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Ladies and Gentlemen:
Xcel Energy Inc., a Minnesota corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), its Debt
Securities of the designation, with the terms and in the aggregate principal
amount specified in Schedule I hereto (the "Debt Securities") to be issued under
its Indenture, dated as of December 1, 2000 from the Company to Xxxxx Fargo Bank
Minnesota, National Association, as trustee (the "Trustee"), as to be amended
and supplemented by a supplemental indenture relating to the Debt Securities
(such Indenture as so supplemented and amended being hereinafter referred to as
the "Indenture"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form, including a prospectus, for the registration under the Act of the
Debt Securities, which registration statement has become effective. Such
registration statement and prospectus may have been amended or supplemented from
time to time prior to the date of this Agreement (which date is set forth in
Schedule I hereto). Any such amendment or supplement was filed with the
Commission and any such amendment has become effective. The Company will file
with the Commission a prospectus supplement (the "Prospectus Supplement")
relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the
Act. Copies of such registration statement and prospectus, any such amendment or
supplement and all documents incorporated by reference therein which were filed
with the Commission on or prior to the date of this Agreement have been
delivered to you and copies of the Prospectus Supplement will be delivered to
you promptly after it is filed with the Commission. Such registration statement,
as amended prior to the date of this Agreement, and such prospectus, as amended
and supplemented prior to the date of this Agreement and as supplemented by the
Prospectus Supplement, are hereinafter called the "Registration Statement" and
the "Prospectus", respectively. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement and, if the Company
files any document pursuant to the Exchange Act after the date of this Agreement
and prior to the termination of the offering of the Debt Securities by the
Underwriters, which documents are deemed to be incorporated by reference into
the Prospectus, the term "Prospectus" shall refer also to said prospectus as
supplemented by the documents so filed from and after the time said documents
are filed with the Commission. There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as exhibits to
the Registration Statement or any documents incorporated by reference therein by
the Act, the Exchange Act or the rules and regulations thereunder which have not
been so filed.
(b) No order preventing or suspending the use of the Prospectus or
the Registration Statement has been issued by the Commission and the
Registration Statement, at the date of this Agreement, complied in all material
respects with the requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the respective rules and regulations of
the Commission thereunder and did not contain any
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untrue statement of a material fact or omit any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, at the time the Prospectus Supplement is filed with the
Commission and at the Closing Date (as hereinafter defined), the Prospectus will
comply in all material respects with the Act and the rules and regulations of
the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided that the
Company makes no representations or warranties as to (A) that part of the
Registration Statement which shall constitute the Statements of Eligibility
(Forms T-1) under the Trust Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by reference
subsequent to the date of this Agreement will, when they are filed with the
Commission, conform in all material respects to the requirements of the Exchange
Act, and the rules and regulations of the Commission thereunder; and none of
such documents include or will include any untrue statement of a material fact
or omit or will omit to state any material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading.
(d) Xxxxxx Xxxxxxxx LLP, which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods specified, and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Minnesota with due corporate authority to carry on the business in which it is
engaged and to own and operate the properties used by it in such business, as
described in the Prospectus; the Company is qualified to do business as a
foreign corporation and is in good standing under the laws of the States of
North Dakota, South Dakota and Colorado; and the Company is not required by the
nature of its business to be licensed or qualified as a foreign corporation in
any other state or jurisdiction; and, except as set forth in the Prospectus
Supplement, the Company has all material licenses and approvals required at the
date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary course of
business, which are material to the Company and its subsidiaries, and there has
not been any material change in the capital
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stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Debt Securities, the consummation of
the transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Debt Securities
and the Indenture will conflict with, or result in the breach of, any of the
terms, provisions or conditions of the Restated Articles of Incorporation, as
amended, or by-laws of the Company, or of any contract, agreement or instrument
to which the Company is a party or in which the Company has a beneficial
interest or by which the Company is bound or of any order, rule or regulation
applicable to the Company of any court or of any federal or state regulatory
body or administrative agency or other governmental body having jurisdiction
over the Company or over its properties.
(j) The Debt Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, when executed and authenticated in
accordance with the Indenture and delivered and paid for as provided herein,
will be duly issued and will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency and other laws affecting enforcement of creditors'
rights, and will be entitled to the benefits of the Indenture which will be
substantially in the form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and binding obligation of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights.
(l) The Securities and Exchange Commission has issued a financing
order under the Public Utility Holding Company Act of 1935, which order
authorizes the issuance of the Debt Securities, and no other approval of any
regulatory public body, state or federal, is, or will be at the Closing Date (as
hereinafter defined), necessary in connection with the issuance and sale of the
Debt Securities pursuant to this Agreement, other than approvals that may be
required under state securities laws.
(m) The Company has good and valid title to all real and fixed
property and leasehold rights which are owned by it, subject only to taxes and
assessments not yet delinquent; as to parts of the Company's property, certain
easements, conditions, restrictions, leases, and similar encumbrances which do
not affect the Company's use of such property in the usual course of its
business, and certain minor defects in titles which are not material, and
defects in titles to certain properties which are not essential to the Company's
business; and mechanics' lien claims being contested or not of record or for the
satisfaction or discharge of which adequate provision has been made by the
Company; and any real property and buildings held under lease by the Company is
held by it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as
of the date hereof, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company
and its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of
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human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in compliance
with all terms and conditions of any such permits, licenses or approvals, except
where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the respective principal amounts of the Debt Securities set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than eight full business
days thereafter as the Representatives and the Company shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company (such date and time being herein called the "Closing Date"). Delivery of
the Debt Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Debt Securities will be delivered in definitive
registered form except that, if for any reason the Company is unable to deliver
the Debt Securities in definitive form, the Company reserves the right, as
provided in the Indenture, to make delivery in temporary form. Any Debt
Securities delivered in temporary form will be exchangeable without charge for
Debt Securities in definitive form. The Debt Securities will be registered in
the names of the Underwriters and in the principal amounts set forth in Schedule
II hereto except that if the Company receives a written request from the
Representatives prior to noon on the second business day preceding the Closing
Date giving the names in which the Debt Securities are to be registered and the
principal amounts thereof (which shall in each case be a multiple of $1,000) the
Company will deliver the Debt Securities so registered. The Debt Securities will
be made available to the Representatives for checking in New York, New York, not
later than 2:00 p.m., New York City time, on the business day preceding the
Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) With the consent of the Representatives, the Company will
cause the Prospectus Supplement to be filed pursuant to Rule 424(b) and/or Rule
434 under the Act and will notify the Representatives promptly of such filing.
During the period for which a prospectus relating to the Debt Securities is
required to be delivered under the Act, the Company will promptly advise the
Representatives (i) when any amendment to the Registration Statement shall have
become effective, (ii) when any subsequent supplement to the Prospectus
(including documents deemed to be incorporated by reference into the Prospectus)
has been filed, (iii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose. The Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(including documents deemed to be incorporated by reference into the Prospectus)
unless the Company has furnished to the Representatives a copy for your review
prior to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Debt
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to amend
or supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will
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prepare and file an amendment or supplement to the Prospectus with the
Commission or will make a filing with the Commission pursuant to Section 13 or
14 of the Exchange Act, which will correct such statement or omission or will
effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives a consolidated earnings statement (which need
not be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434
under the Act, as soon as is reasonably practicable after the end of such
period, but in any event no later than eighteen months after the "effective date
of the Registration Statement" (as defined in Rule 158(c) under the Act), which
will satisfy the provision of Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company, Rule 158).
(d) The Company will furnish to each of the Representatives a
signed copy of the Registration Statement as originally filed and of each
amendment thereto, including the Form T -1 and all powers of attorney, consents
and exhibits filed therewith (other than exhibits incorporated by reference),
and will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the Debt
Securities for sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Debt Securities; provided that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so subject.
(f) So long as the Debt Securities are outstanding, the Company
will furnish (or cause to be furnished) to each of the Representatives, upon
request, copies of (i) all reports to stockholders of the Company and (ii) all
reports and financial statements filed with the Commission or any national
securities exchange.
(g) During the period beginning from the date of this Agreement
and continuing to the Closing Date, the Company will not offer, sell, or
otherwise dispose of any debt securities of the Company (except under prior
contractual commitments which have been disclosed to you), without the prior
written consent of the Representatives, which consent shall not be unreasonably
withheld.
5. Expenses. Whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, the Company will pay
all costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the foregoing,
all costs, taxes and expenses incident to the issue and delivery of the Debt
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus (including all documents incorporated by reference therein) and any
amendments thereof or supplements thereto, all costs and expenses (including
fees and expenses of counsel) incurred in connection with "blue sky"
qualifications, the determination of the legality of the Debt Securities for
investment by institutional investors and the rating of the Debt Securities, and
all costs and expenses of the printing and distribution of all documents in
connection with this underwriting. Except as provided in this Section 5 and
Section 8 hereof, the Underwriters will pay all their own costs and expenses,
including the fees of their counsel and any advertising expenses in connection
with any offer they may make.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Debt Securities shall be
subject, in the discretion of the Representatives, to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof and the Closing Date, to the accuracy of the statements of
Company officers made in any certificates given pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
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(a) The Prospectus Supplement relating to the Debt Securities
shall have been filed with the Commission pursuant to Rule 424(b) and/or Rule
434 within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated
the Closing Date, of Xxxx X. Xxxxxxx, Vice President and General Counsel of the
Company, substantially in the form included as Exhibit A.
(c) The Representatives shall have received from Xxxxx, Day,
Xxxxxx & Xxxxx, Chicago, Illinois, counsel for the Underwriters, such opinion or
opinions dated the Closing Date with respect to the incorporation of the
Company, this Agreement, the validity of the Indenture, the Debt Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this Section
6 and to the further effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date, and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date; and
(ii) there has been no material adverse change in the
condition of the Company and its subsidiaries taken as a
whole, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries taken
as a whole, whether or not arising in the ordinary course of
business, from that set forth or contemplated by the
Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received a letter from Xxxxxx
Xxxxxxxx LLP, independent public accountant for the Company (dated the date of
this Agreement and Closing Date, respectively, and in form and substance
satisfactory to the Representatives) advising that (i) they are an independent
public accountant as required by the Act and published rules and regulations of
the Commission thereunder, (ii) in their opinion, the consolidated financial
statements and supplemental schedules incorporated by reference in the
Registration Statement and covered by their opinion filed with the Commission
under Section 13 of the Exchange Act comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
published rules and regulations of the Commission thereunder, (iii) they have
performed limited procedures, not constituting an audit, including a reading of
the latest available interim financial statements of the Company and its
consolidated subsidiaries, a reading of the minutes of meetings of the Board of
Directors, committees thereof, and of the Shareholders, of the Company and its
subsidiaries since the date of the most recent audited financial statements
included or incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial accounting matters
and such other inquiries and procedures as may be specified in such letter, and
on the basis of such limited review and procedures nothing came to their
attention that caused them to believe that: (a) any material modifications
should be made to any unaudited consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement or
Prospectus for them to be in conformity with generally accepted accounting
principles or any unaudited consolidated financial statements of the Company
included or incorporated by reference in the Registration Statement or
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the rules and regulations of the
Commission applicable to Form 10-Q; and (b) with respect to the period
subsequent to the date of the most recent financial statements included or
incorporated by reference in the Prospectus and except as set forth in or
contemplated by the Registration Statement or Prospectus, there were any
changes, at a specified date not more than five business days prior to the date
of the letter, in the capital stock of the Company, increases in long-term debt
or decreases in stockholders' equity or net current assets of the Company and
its consolidated subsidiaries as
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compared with the amounts shown on the most recent consolidated balance sheet
included or incorporated in the Prospectus, or for the period from the date of
the most recent financial statements included or incorporated by reference in
the Prospectus to such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in operating revenues, operating
income, net income, or earnings per share of Common Stock of the Company and its
subsidiaries, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation is not deemed
necessary by the Representatives; and (iv) they have carried out specified
procedures performed for the purpose of comparing certain specified financial
information and percentages (which is limited to financial information derived
from general accounting records of the Company) included or incorporated by
reference in the Registration Statement and Prospectus with indicated amounts in
the financial statements or accounting records of the Company and (excluding any
questions of legal interpretation) have found such information and percentages
to be in agreement with the relevant accounting and financial information of the
Company referred to in such letter in the description of the procedures
performed by them.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 6 which makes it impractical or inadvisable in the
judgment of the Representatives to proceed with the public offering or the
delivery of the Debt Securities on the terms and in the manner contemplated by
the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have
occurred, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Debt Securities on the terms and in the manner contemplated by
the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact which in the opinion of
counsel for the Underwriters is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as they
may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
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7. Conditions of Company's Obligations. The obligations of the
Company to sell and deliver the Debt Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Representative, threatened.
(b) The order of the Securities and Exchange Commission referred
to in paragraph (1) of Section 1 shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Debt Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Debt Securities, including the reasonable fees and
disbursements of counsel for the Underwriters.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Debt
Securities as originally filed or in any amendment thereof, or in the
Preliminary Prospectus Supplement or the Prospectus or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and agrees to reimburse
each such indemnified party for any legal or other expenses as reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damages, liability or action; provided that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
therein and provided further that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Debt Securities which are the subject thereof if such person was not sent or
given a copy of the Prospectus (but without the documents incorporated by
reference therein) at or prior to the confirmation of the sale of such Debt
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such
Prospectus was corrected in the Prospectus, provided that the Company shall have
delivered the Prospectus, in a timely manner and in sufficient quantities to
permit such delivery by the Underwriters. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriters but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for use in the
documents referred to in the foregoing indemnity, and agrees to reimburse each
such indemnified party for any legal or other expenses
8
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnified parties under subparagraphs (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Debt Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no
9
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Debt Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase the Debt Securities which it has agreed to
purchase hereunder (in this Section called the "Unpurchased Debt Securities"),
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Unpurchased Debt Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Debt Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Unpurchased Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Unpurchased Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Debt Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Unpurchased Debt Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Unpurchased Debt
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Unpurchased Debt Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Debt Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Debt Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Debt Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Debt Securities which such Underwriter agreed to purchase
hereunder) of the Unpurchased Debt Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Unpurchased Debt Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Debt Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the Debt
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Unpurchased Debt Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for all Debt Securities, if prior to such time
(i) trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (ii) if a banking moratorium shall have been declared either by
Federal, Minnesota or New York State authorities, (iii) if trading in any
securities of the Company shall have been suspended or halted, or (iv) if there
shall have occurred any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a war or national
emergency or any other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the manner
contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of their respective officers, directors or controlling persons
within the meaning of the Act, and will survive delivery of and payment for the
Debt Securities. The provisions of Sections 5, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule I
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
attention Secretary.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in counterparts,
all of which, taken together, shall constitute a single agreement among the
parties to such counterparts.
17. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
18. Other. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
11
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
XCEL ENERGY INC.
By:_____________________
Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
[NAME OF REPRESENTATIVE]
By:_______________________________________
For itself or themselves and as Representatives of
the several Underwriters, if any, named in Schedule
II to the foregoing Agreement.
12
SCHEDULE I
Underwriting Agreement dated ______________
Registration Statement No. 333-______________
Representatives and Addresses:
Debt Securities:
Designation:
Principal Amount:
Supplemental Indenture dated as of:
Date of Maturity:
Interest Rate: % per annum, payable and of each
year, commencing .
Purchase Price: % of the principal amount thereof, plus
accrued interest, if any, from
to the date of payment and delivery.
Public Offering Price: % of the principal amount thereof, plus
accrued interest, if any, from to
the date of payment and delivery.
Redemption Provisions:
Payment to be made in federal (same day) funds. ________ Yes _________ No
Closing Date and Location:
Office for Payment of Debt Securities:
Office for Checking of Debt Securities:
SCHEDULE II
NAME AMOUNT
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Total..................................................
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EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXXX
RE: $ PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE , %
OF XCEL ENERGY INC., A MINNESOTA CORPORATION.
Ladies and Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Xcel Energy Inc., a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of $ principal
amount of Debt Securities, Series due , % herein called the "Debt
Securities." In connection therewith I have participated in the preparation of
the proceedings for the issuance and sale of the Debt Securities including the
Underwriting Agreement dated , between you and the Company relating
to your purchase of the Debt Securities, herein called the "Agreement," and have
either participated in the preparation of or examined the Indenture dated as of
December 1, 2000, as previously amended and supplemented, and the Supplemental
Indenture dated as of , creating the Debt Securities, all from the
Company to Xxxxx Fargo Bank Minnesota, National Association, as Trustee (which
Indenture and Supplemental Indenture are herein collectively called the
"Indenture"). I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Debt Securities. Whenever the
terms "Registration Statement" or "Prospectus" are used herein, they shall have
the respective meanings set forth in the Agreement. My examination has extended
to all statutes, records, instruments, and documents which I have deemed
necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws
of the State of Minnesota; has corporate power, right, and authority to do
business and to own property in the states of Minnesota, North Dakota, South
Dakota and Colorado in the manner and as set forth in the Prospectus; has
corporate power, right and authority to own securities of its subsidiaries; and
has corporate power, right, and authority to make the Indenture and issue and
sell the Debt Securities;
2. The authorized capital stock of the Company is as set forth in
the Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
3. Each Significant Subsidiary, as defined in the Agreement, of
the Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial properties
or in which the conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each subsidiary has been duly authorized
and validly issued and is fully paid and non-assessable; and the capital stock
of each such subsidiary owned by the Company, directly or through subsidiaries,
is owned free and clear of any pledge, lien, encumbrance, claim or equity;
4. The Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding obligation of the Company,
except to the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate
corporate proceedings on the part of the Company, has been duly executed and
delivered and constitutes a legal, valid, and binding instrument enforceable in
accordance with its terms except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors' rights;
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6. The issuance of the Debt Securities in accordance with the
terms of the Indenture and the sale and delivery thereof pursuant to the
provisions of the Agreement have been duly authorized by the Company; the
statements made under the caption "Description of Debt Securities" in the
Prospectus, insofar as they purport to summarize provisions of documents
specifically referred to therein, fairly present the information called for with
respect thereto by Form S-3; the Debt Securities are in due legal form,
constitute legal, valid, and binding obligations of the Company, and (subject to
the qualifications expressed in paragraph 5 above with respect to the
enforceability of certain provisions of the Indenture) are enforceable in
accordance with their terms;
7. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof and compliance by the Company
with all the terms and provisions of the Indenture will not result in a breach
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument known to me
to which the Company is a party or by which it is bound, or the Restated
Articles of Incorporation, as amended, or By-laws of the Company or, to the best
of my knowledge, any order, rule or regulation applicable to the Company of any
court or of any Federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over the Company or its property;
8. The Registration Statement has become effective under the Act.
The Prospectus Supplement (as defined in the Agreement) has been filed pursuant
to Rule 424(b) under the Act, and no proceedings for a stop order have been
instituted or to the knowledge of such counsel are pending or threatened under
Section 8(d) of the Act; the Securities and Exchange Commission has issued a
financing order under the Public Utility Holding Company Act of 1935 which order
authorizes the issuance of the Debt Securities; the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"); and no further approval of, authorization, consent, certificate
or order of any governmental body, federal, state or other, is required in
connection with the issuance and sale of the Debt Securities by the Company to
you as provided in the Agreement, except as may be required by state securities
laws;
9. At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no opinion
is being expressed) complied as to form in all material respects with the
requirements of the Act, the rules and regulations thereunder, the Trust
Indenture Act and the rules and regulations thereunder;
10. I do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as required
nor of any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required; and
11. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Debt Securities" purporting to set
forth the opinion of counsel or purporting to be based upon the opinion of
counsel correctly set forth my opinion on said respective matters.
In the course of my participation in the preparation of the
Registration Statement and Prospectus I made investigations as to the accuracy
of certain of the statements of fact contained therein, I discussed other
matters with officers, employees, and representatives of the Company, and I
examined various corporate records and data. While I do not pass upon or assume
responsibility for, and shall not be deemed to have independently verified, the
accuracy and completeness of the statements contained in the Registration
Statement or Prospectus (except as to matters set forth in paragraphs 9 and 11
above) nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus as of the date of the Agreement or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving opinions as to conformity to the laws of States other than
Minnesota and as to the franchises and titles to property of the Company, I have
in certain instances relied upon the opinion of other counsel employed or
retained by the Company to render opinions in respect thereto.
Respectfully submitted,
By:____________________________________
Xxxx X. Xxxxxxx
Vice President and General Counsel
Xcel Energy Inc.
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