EXHIBIT 10.08
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
August 18, 2000 is by and between Xcel Energy Inc., a Minnesota corporation,
formerly known as Northern States Power Company, (the "Assignor"), and Northern
States Power Company, a Minnesota corporation, formerly known as Northern Power
Corporation (the "Assignee").
RECITALS
WHEREAS, in connection with that certain Agreement and Plan of Merger
dated March 24, 1999 (the "Merger Agreement") between Assignor, then known as
Northern States Power Company and New Century Energies, Inc. ("NCE"), subject to
certain conditions, the Assignor agreed to contribute, transfer, assign, convey
and deliver to a wholly-owned subsidiary of Assignor, now identified as the
Assignee, as a capital contribution or in exchange for shares of such
subsidiary's capital stock, all of Assignor's assets other than the stock of the
Assignor's subsidiaries (the "Assets"), and such subsidiary will assume all of
the Assignor's liabilities and obligations in respect of the Assets (the
"Assumed Obligations"); and
WHEREAS, Assignor desires to assign the Assets to Assignee, and
Assignee wishes to assume the Assumed Obligations as contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of the promises herein made and
subject to the terms and conditions herein set forth, the parties hereto agree
as follows:
1. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Merger Agreement.
2. ASSIGNMENT. Subject to the fulfillment or waiver of all conditions
to Assignor's obligation to effect the merger under the Merger Agreement,
Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's
rights, title and interest in and to the Assets, effective as of 6:00 p.m.
Minneapolis, Minnesota time on August 18, 2000 (the "Effective Time").
In addition, as of the Effective Time and as part of the Asset
Contribution, Assignor hereby assigns, transfers and conveys to Assignee all of
Assignor's rights, obligations and benefits under all executory contracts,
permits, leases and other agreements entered by Assignor in the ordinary course
of its business, including, but not
limited to easements, permits or other land rights for right-of-way, access
or other occupancy or usage purposes, all municipal and other franchises,
leaseholds, licenses, permits, privileges, patents and patent rights,
evidence of indebtedness, contracts, claims, accounts receivable, all books
of account and other corporate records, choses in action and other
intangibles. Without limiting the generality of the foregoing, Assignor
specifically assigns all rights, obligations and benefits under all
certificates of need, franchises, rate schedules and other authorities
provided or issued by operation of law or by order or consent of a regulatory
or governmental body to Assignor with the intent that as of the Effective
Time Assignor's status under such certificates, franchises, rate schedules
and other authorities shall be treated as if such were initially issued to or
acquired directly by Assignee.
3. ASSUMPTION. As of the Effective Time, Assignee hereby accepts the
foregoing assignment and agrees to assume and be bound by all of the terms of,
and to undertake all of the obligations and liabilities of the Assumed
Obligations.
4. SUPPLEMENTAL TRUST INDENTURE. In furtherance of the foregoing
assignment and assumption and as a condition precedent to the following release,
the parties hereby agree to enter a Supplemental Trust Indenture with Xxxxxx
Trust and Savings Bank, whereby, in accordance with the original Trust Indenture
dated February 1, 1937, the Assignee in consideration of the transfer by
Assignor of all the mortgaged and pledged property under the Trust Indenture,
assumes all the obligations of the Assignor under said February 1, 1937 Trust
Indenture and all indentures supplemental thereto.
5. RELEASE OF ASSIGNOR. Simultaneously with the effectiveness of this
Agreement, Assignor shall be released from all Assumed Obligations with the
exception of Assignor's obligations under that certain Indenture dated as of
January 30, 1997, as supplemented, between Assignor and Xxxxx Fargo Bank
Minnesota, National Association (formerly, Norwest Bank Minnesota, National
Association), as Trustees pertaining to Assignor's 7-7/8% Junior Subordinated
Debentures due 2037.
6. REPRESENTATIONS AND WARRANTIES. As inducement for the other party to
enter into this Agreement, Assignor and Assignee, as applicable, represent and
warrant the following:
6.1. EXISTENCE. It is duly organized, validly existing and in
good standing in its respective state of incorporation and duly
qualified to carry on its business as it has been and is currently
conducted.
6.2. AUTHORITY; NO CONFLICT. It has all requisite power and
authority to enter into this Agreement, and its execution, delivery and
performance of this Agreement does not and will not (a) violate,
conflict with or result in the breach of
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any provision of its corporate or company organizational documents,
(b) conflict with or violate any law or governmental order
applicable to it or any of its assets, properties or businesses, or
(c) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to
others any rights to or termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation
on any encumbrance on the Units or any of its assets or properties
pursuant to any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which it is a party or any of its
assets or properties is bound or affected which could have a
material adverse effect upon its business, assets or properties.
6.3 COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. This
Agreement has been made in accordance with all applicable laws and
regulations and the terms and conditions of the Merger Agreement.
7. FURTHER ASSURANCES. As additional consideration for entering this
Agreement, each party hereto agrees that from time to time after the date
hereof, it shall execute and deliver or cause to be executed and delivered such
deeds, assignments of easements, permits, contracts or other agreements, bills
of sale or other instruments, documents and papers, and take all such further
action as may be reasonably required in order to consummate more effectively the
purposes of this Agreement and to implement the transactions contemplated
hereby.
8. AMENDMENT. No waiver, modification or amendment of any provision of
this Agreement shall be effective unless it is in writing and signed by Assignor
and Assignee.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF MINNESOTA.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the date first above written.
XCEL ENERGY INC.
By:
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Xxxxxx X. XxXxxxxx
Vice President & Chief Financial Officer
NORTHERN STATES POWER COMPANY
By:
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Xxxxx X. Xxxxxxxx
Chairman, President and Chief Executive
Officer
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