Exhibit 1.01
Form of November 20, 0000
XXXXXXXX XXXXXX POWER COMPANY
(a Minnesota corporation)
FIRST MORTGAGE BONDS
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 First Mortgage Bonds of the designation, with the
terms and in the aggregate principal amount specified in Schedule I hereto
(the "Bonds") to be issued under its Trust Indenture, dated as of February 1,
1937, from the Company to Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee"), as heretofore supplemented and amended by supplemental trust
indentures and as to be further supplemented and amended by a supplemental
trust indenture relating to the Bonds (such Trust Indenture as so
supplemented and amended and as to be 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 Bonds,
Senior Notes and 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
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Commission a prospectus supplement (the "Prospectus Supplement") relating to the
Bonds 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 Bonds 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
Trustee and the trustees for the Senior Notes and Debt Securities 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
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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) 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.
(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 and South
Dakota; 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
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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 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 Bonds, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Bonds 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 Bonds 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 Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Bonds,
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 Bonds 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 described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with the
terms thereof), subject only to taxes and assessments not yet delinquent; the
lien of the 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
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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 Indenture; 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 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 Bonds set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds 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 Bonds shall be
made to the Representatives for the respective accounts of the several
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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 Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form. Any Bonds delivered in temporary
form will be exchangeable without charge for Bonds in definitive form. The Bonds
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 Bonds 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 Bonds so registered. The Bonds
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 Bonds 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 Bonds 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
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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 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 Bonds 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 Bonds; 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 Bonds 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 first mortgage bonds 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 Bonds to the
Underwriters, all fees and expenses of the Company's counsel and
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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 Bonds for investment by
institutional investors and the rating of the Bonds, 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 Bonds 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 Bonds 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 Indenture, the Bonds, 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 the 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
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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 Bonds 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 Bonds 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
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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 Bonds 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 Bonds
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 Bonds.
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
11
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Bonds as originally filed or
in any amendment thereof, or in 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 Bonds 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 Bonds 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.
(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
12
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 Bonds. 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
13
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 Bonds 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 Bonds which it has agreed to purchase hereunder
(in this Section called the "Unpurchased Bonds"), the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Unpurchased Bonds 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 Bonds, 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 Bonds 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 Bonds, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Bonds, the Representatives or the Company shall have the right to postpone the
Closing Date for such Unpurchased Bonds 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 Bonds.
14
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds 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 Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds 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 Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds 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 Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, 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 Bonds 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 Bonds, 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 Bonds 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 Bonds. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
15
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
--------------------------
Vice President
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
[Name of Representative(s)]
By
----------------------------------------------
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
------------
Registration Statement No. 333-
------
Representatives and Addresses:
Bonds:
Designation: % First Mortgage Bonds, Series due
---- ------
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 from to the date of payment and delivery.
---------
Public Offering Price: % of the principal amount thereof, plus accrued
-----
interest from to the date of payment and
------------
delivery.
Payment to be made in federal (same day) funds. Yes No
--------- ---------
Closing Date and Location:
Office for Delivery of Bonds:
Office for Payment of Bonds:
Office for Checking of Bonds:
18
SCHEDULE II
Name Amount
---- ------------
..................................................................... $
.....................................................................
.....................................................................
.....................................................................
.....................................................................
.....................................................................
------------
Total .....................................................................
------------
------------
19
Exhibit A
Form of opinion of Xxxx X. Xxxxxxx
Re: $ principal amount of First Mortgage Bonds, 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 First Mortgage Bonds, Series
due , % herein called the "Bonds." In connection therewith I have
participated in the preparation of the proceedings for the issuance and sale
of the Bonds including the Underwriting Agreement dated ,
between you and the Company relating to your purchase of the Bonds, herein
called the "Agreement," and have either participated in the preparation of or
examined the Trust Indenture dated February 1, 1937, and the Supplemental
Trust Indentures thereto and the Supplemental Trust Indenture dated as of
, creating the Bonds, all from the Company to Xxxxxx Trust and
Savings Bank, as Trustee (which Trust Indenture and Supplemental Trust
Indentures 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 Bonds. 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, and South Dakota 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 Bonds;
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;
20
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 the
provisions of the United States Bankruptcy Code may affect the validity
of the lien thereof with respect to proceeds, products, rents, issues,
or profits realized, and additional property acquired, after the
commencement of a case under said Code, and except as enforcement of
the provisions of the Indenture may be limited by the laws of the
states of Minnesota, North Dakota, and South Dakota (where property
covered thereby is located) affecting the remedies for the enforcement
of the security provided for in the Indenture (which state laws do not
in my opinion make such remedies inadequate for realization of the
benefits of such security) or except as the same may be limited by
bankruptcy or insolvency laws or other similar laws;
6. The issuance of the Bonds 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 New Bonds" 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 Bonds 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 validity and enforceability of certain of
the provisions of the Indenture) and 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
21
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 capital structure which order authorizes the issuance of the
Bonds; 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 Bonds 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 Indenture is in proper form, conforming to the laws of
the States of Minnesota, North Dakota, and South Dakota, to give and
create the lien which it purports to create and has been and now is
duly and properly recorded or filed in all places necessary to
effectuate the lien of the Indenture;
12. The Company has good and valid title to all real and fixed
property and leasehold rights described or enumerated in the Indenture
(except such properties as have been released from the lien thereof in
accordance with the terms thereof), subject only to: (a) taxes and
assessments not yet delinquent; (b) the lien of the Indenture; (c) 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,
certain minor defects in titles which are not material, 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 Indenture;
22
13. The Bonds are secured by and entitled to the benefits of
the Indenture equally and ratably, except as to sinking fund
provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien of the Indenture on
all of the real and fixed properties, leasehold rights, franchises, and
permits now owned by the Company, subject only to the items set forth
in the preceding paragraph 12 of this opinion;
14. The Bonds also are secured equally and ratably, except as
to sinking fund provisions, with all other bonds duly issued and
outstanding under the Indenture by a valid and direct first mortgage
lien (subject to permitted liens as defined in the Indenture) on all
real and fixed property hereafter acquired by the Company in conformity
with the terms of the Indenture, except as the United States Bankruptcy
Code may affect the validity of the lien of such Indenture on property
acquired after the commencement of a case under such Act, except as to
the prior lien of the Trustee under the Indenture in certain events
specified therein, and except as otherwise provided in the Indenture in
the case of consolidation, merger, or transfer of all the mortgaged and
pledged property as an entirety;
15. 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
16. All statements contained in the Registration Statement and
Prospectus under the caption "Description of New Bonds" 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.
These opinions do not cover titles to easements for water flowage
purposes or rights of way for electric and gas transmission and distribution
facilities, steam mains, and telephone lines. However, the Company has the power
of eminent domain in the states in which it operates.
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 16
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
23
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 my opinion under paragraph 12 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts which
would adversely affect the titles shown on the abstracts. 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
24
