NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, 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 June 1,
1999, from the Company to Norwest Bank Minnesota, National Association, as
trustee (the "Debt 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 "Debt
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, Senior Notes and First Mortgage Bonds, 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
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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 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 Debt Trustee and the trustees for the
Senior Notes and First Mortgage Bonds 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.
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(d) PricewaterhouseCoopers 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. The
unaudited pro forma financial information incorporated by reference in the
Registration Statement and the Prospectus complies in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of such information.
(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 Arizona; 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 stock or long-term debt of the Company or any of its
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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 Debt
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 Debt 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 Debt 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 Debt Indenture which will
be substantially in the form heretofore delivered to you.
(k) The Debt 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 Debt 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 Minnesota Public Utilities Commission has issued its order
approving capital structure 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; the lien of First Mortgage Indenture; 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 pursuant to the First
Mortgage Indenture; and any real property and buildings held under lease by
the Company is
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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 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
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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 Debt 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 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.
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(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 Forms 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
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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:
(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 Xxxxxxx, Carton &
Xxxxxxx, 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 Debt 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
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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 letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants 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 he Commission applicable to Form 10-Q;
(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
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
9
explanation is not deemed necessary by the Representatives; (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 and (v) on
the basis of a reading of the unaudited pro forma financial information
incorporated by reference in the Registration Statement and the Prospectus,
carrying out certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (v), inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amouns in the unaudited pro forma financial information, nothing
came to their attention that caused them to believe that the unaudited pro
forma financial information does not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such information.
(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
10
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.
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 Minnesota Public Utilities 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
11
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.
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 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.
12
(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
13
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 paries' 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 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
14
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.
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
15
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 1
hereto or, if sent to the Company, will be mailed, delivered or transmitted
and confirmed to it at 000 Xxxxxxxx Xxxx, 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 Minnesota.
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.
16
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,
NORTHERN STATES POWER COMPANY
By \s\ Xxxxxx X. XxXxxxxx
----------------------------------
Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX BARNEY INC.
By \s\ Xxxxx X. Kind
---------------------------------
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
17
SCHEDULE I
Underwriting Agreement dated July 21, 1999
Registration Statement No. 333-67675
Representatives and Addresses: Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Debt Securities:
Designation: 6.875% Senior Notes, Series due 2009
Principal Amount: $250,000,000
Supplemental Indenture dated as of July 15, 1999
Date of Maturity: August 1, 2009
Interest Rate: 6.875% per annum, payable February 1 and August 1
of each year, commencing February 1, 2000
Purchase Price: 98.629% of the principal amount thereof, plus
accrued interest from July 26, 1999 to the date of
payment and delivery.
Public Offering Price: 99.279% of the principal amount thereof, plus
accrued interest from July 26, 1999 to the date of
payment and delivery.
Redemption Provisions:
The Company may redeem at any time at a redemption
price equal to the greater of (i) the principal
amount or (ii) the sum of the present values of
the remaining scheduled payments of principal and
interest, discounted to the date of redemption on
a semi-annual basis at the Treasury Yield plus
0.15%, plus accrued interest to the date of
redemption.
Payment to be made in federal (same day) funds. X Yes No
----- -----
Closing Date and Location: July 26, 0000
Xxxxxxxx Xxxxxx Power Company
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
1
Office for Delivery of Debt Securities: The Depository Trust Company
c/o Norwest Bank Minnesota,
National Bank
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Office for Payment of Debt Securities: Northern States Power Company
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Office for Checking of Debt Securities: The Depository Trust Company
c/o Norwest Bank Minnesota,
National Bank
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
2
SCHEDULE II
NAME AMOUNT
---- ------------
Xxxxxxx Xxxxx Xxxxxx Inc.. . . . . . . . . . . . . . . $100,000,000
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . 50,000,000
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . 50,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated . . 50,000,000
------------
Total. . . . . . . . . . . . . . . . . . . . . $250,000,000
------------
------------
3
EXHIBIT A
FORM OF OPINION OF XXXX X. XXXXXXX
RE: $ PRINCIPAL AMOUNT OF DEBT SECURITIES , SERIES DUE , %
OF NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, 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 May 1,
1999 and the Supplemental Indenture dated as of ____________, creating the
Debt Securities, all from the Company to Norwest 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 Arizona 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
Debt 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;
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 Minnesota Public Utilities
Commission has issued its order approving the Company's
2
capital structure 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;
11. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the
customers in the jurisdictions where it provided electric and gas service,
except in certain instances that are not material to the Company; and
12. 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
12 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.
3
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
Northern States Power Company
4
