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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NORTHERN STATES POWER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MINNESOTA 41-0448030
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identification
organization) No.)
</TABLE>
414 Nicollet Mall, Minneapolis, Minnesota 55401
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
<TABLE>
<S> <C>
EDWARD J. MCINTYRE GARY R. JOHNSON
Vice President and Chief Financial Officer Vice President and Secretary
Northern States Power Company Northern States Power Company
414 Nicollet Mall 414 Nicollet Mall
Minneapolis, Minnesota 55401 Minneapolis, Minnesota 55401
(612) 330-7712 (612) 330-7623
</TABLE>
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO
PETER D. CLARKE
Gardner, Carton & Douglas
321 North Clark Street
Chicago, Illinois 60610
(312) 245-8685
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
First Mortgage Bonds................. $300,000,000 $100%(1) $300,000,000(1) $103,449
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 6, 1995
PROSPECTUS
NORTHERN STATES POWER COMPANY
(A MINNESOTA CORPORATION)
FIRST MORTGAGE BONDS
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Northern States Power Company, a Minnesota corporation (the "Company"), may
offer for sale from time to time up to $300,000,000 aggregate principal amount
of its First Mortgage Bonds (the "New Bonds"), in one or more series, on terms
and in amounts to be determined at the time of sale. The aggregate principal
amount, rate or rates (or method of calculation) and time or times and place of
payment of interest, maturity or maturities, offering price, any redemption
terms or other specific terms of the series of New Bonds in respect of which
this Prospectus is being delivered (the "Offered Bonds") will be set forth in a
supplement to this Prospectus (the "Prospectus Supplement").
The Company may sell the New Bonds through underwriters or dealers, directly
to a limited number of institutional purchasers or through agents. See "Plan of
Distribution." The Prospectus Supplement will set forth the names of any
underwriters, dealers or agents involved in the distribution of the Offered
Bonds and any applicable commissions or discounts and the net proceeds to the
Company from such sale.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 1995
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER OR AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE NEW BONDS IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information on file can be inspected at the public
reference offices of the Commission currently at 450 Fifth Street, N.W.,
Washington, D.C. 20549; 500 West Madison Street, Chicago, Illinois 60661; and 7
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
In addition, reports, proxy material and other information concerning the
Company may be inspected at the Library of the New York Stock Exchange, 20 Broad
Street, New York, New York, at the office of the Chicago Stock Exchange, 440
South LaSalle Street, Chicago, Illinois, and at the office of the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California, on which exchanges the
Company's Common Stock is listed. The Company is not required to, and does not,
provide annual reports to holders of its debt securities unless specifically
requested by a holder.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to the
Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1994;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995 (and Amendments thereto (on Form
10-Q/A) dated August 4, 1995 and August 7, 1995); and
3. The Company's Current Reports on Form 8-K dated January 30, 1995,
February 28, 1995, April 28, 1995, June 27, 1995, June 28, 1995,
September 1, 1995 and September 13, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this Prospectus or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference in the Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON (INCLUDING ANY
BENEFICIAL OWNER) TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN INCORPORATED IN THIS PROSPECTUS BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO THE ASSISTANT SECRETARY, NORTHERN STATES POWER COMPANY,
414 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55401 (612-330-5994).
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[LOGO]
Northern States Power Company (the "Company") was incorporated in 1909 under
the laws of Minnesota. Its executive offices are located at 414 Nicollet Mall,
Minneapolis, Minnesota 55401. (Phone 612-330-5500). The Company's subsidiaries
include Northern States Power Company, an operating public utility incorporated
in Wisconsin ("NSP-Wisconsin"), NRG Energy, Inc. ("NRG"), a Delaware
corporation, and Viking Gas Transmission Company, a Delaware corporation
("Viking"). The Company and its subsidiaries collectively are referred to herein
as NSP.
NSP is predominantly an operating public utility engaged in the generation,
transmission and distribution of electricity throughout a 49,000 square mile
service area and the distribution of natural gas in approximately 148
communities within this area. Viking is a regulated natural gas transmission
company that operates a 500-mile interstate natural gas pipeline. NRG is
primarily engaged in managing several of NSP's non-regulated energy
subsidiaries.
The Company serves customers in Minnesota, North Dakota and South Dakota.
NSP-Wisconsin serves customers in Wisconsin and Michigan. Of the approximately
three million people served by the Company and NSP-Wisconsin, the majority are
concentrated in the Minneapolis-St. Paul Metropolitan Area. In 1994, about 61
percent of NSP's electric retail revenue was derived from sales in the
Minneapolis-St. Paul Metropolitan Area and about 56 percent of gas revenues came
from sales in the St. Paul area. NSP's electric generation for 1994 was provided
for by coal (59%), nuclear (36%), and renewable and other fuels (5%). NSP
currently operates three nuclear units that were placed in service in 1971, 1973
and 1974. NSP has no additional nuclear units under construction.
PROPOSED MERGER
The Company, Wisconsin Energy Corporation, a Wisconsin corporation ("WEC"),
Northern Power Wisconsin Corp., a Wisconsin corporation and wholly-owned
subsidiary of the Company ("New NSP"), and WEC Sub Corp., a Wisconsin
corporation and wholly-owned subsidiary of WEC ("WEC Sub"), have entered into an
Agreement and Plan of Merger, dated as of April 28, 1995 and as amended and
restated as of July 26, 1995 (the "Merger Agreement"), which provides for a
strategic business combination involving NSP and WEC in a "merger-of-equals"
transaction (the "Transaction"). The Transaction, which was unanimously approved
by the Boards of Directors of the constituent companies and approved by the
shareholders of both the Company and WEC, is expected to close shortly after all
of the conditions to the consummation of the Transaction, including obtaining
applicable regulatory approvals, are met or waived. The regulatory approval
process is expected to take approximately 12 to 18 months from April 28, 1995.
Additional information concerning the Transaction and the Merger Agreement,
including pro forma combined financial information, is included in the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and Amendments
thereto (on Form 10-Q/A) dated August 4, 1995 and August 7, 1995 (the "Form
10-Q") filed with the Commission and incorporated by reference into this
Prospectus.
In the Transaction, the holding company of the combined enterprise will be
registered under the Public Utility Holding Company Act of 1935, as amended. The
holding company will be named Primergy Corporation ("Primergy") and will be the
parent company of both the Company (which, for regulatory reasons, will
reincorporate in Wisconsin) and of WEC's present principal utility subsidiary,
Wisconsin Electric Power Company ("WEPCO") which will be renamed "Wisconsin
Energy Company." Wisconsin Energy Company will include the operations of WEC's
other present utility subsidiary, Wisconsin Natural Gas Company, which is
anticipated to be merged into WEPCO by January 1, 1996, as previously planned.
It is anticipated that, following the Transaction, the Company's Wisconsin
utility subsidiary, NSP-Wisconsin, will be merged into Wisconsin Energy Company
and that NRG and the Company's other subsidiaries will become subsidiaries of
Primergy.
3
<PAGE>
As noted above, pursuant to the Transaction the Company will reincorporate
in Wisconsin for regulatory reasons. This reincorporation will be accomplished
by the merger of the Company into New NSP, with New NSP being the surviving
corporation and succeeding to the business of the Company as an operating public
utility. Following such merger, WEC Sub will be merged with and into New NSP,
with New NSP being the surviving corporation and becoming a subsidiary of
Primergy. Both New NSP and WEC Sub were created to effect the Transaction and
will not have any significant operations, assets or liabilities prior to such
mergers.
The Transaction is subject to customary closing conditions, including,
without limitation, the receipt of all necessary governmental approvals and the
making of all necessary governmental filings, all as more fully described in the
Form 10-Q.
A preliminary estimate indicates that the Transaction will result in net
savings of approximately $2.0 billion in costs over 10 years. It is anticipated
that the synergies created by the Transaction will allow the Company and
Wisconsin Energy Company to implement a modest reduction in electric retail
rates followed by a rate freeze for electric retail customers through the year
2000. Both the Company and WEC recognize that the divestiture of their existing
gas operations and certain non-utility operations is a possibility under the new
registered holding company structure, but will seek approval from the Commission
to maintain such businesses. If divestiture is ultimately required, the
Commission has historically allowed companies sufficient time to accomplish
divestitures in a manner that protects shareholder value.
Following the completion of the Transaction, the Offered Bonds and the
Company's other outstanding first mortgage bonds will be obligations of New NSP,
as a subsidiary of Primergy, and will continue to be secured by the Indenture as
described in this Prospectus. However, as described above, New NSP is not
expected to retain any of the Company's subsidiaries and the Offered Bonds will
not be an obligation of Primergy or any other subsidiary of Primergy. For the
twelve months ended June 30, 1995 and the year ended December 31, 1994, the
Company's subsidiaries constituted 33% and 29% of NSP's consolidated net income,
respectively, and represented 22% of NSP's consolidated assets and 17% of NSP's
consolidated liabilities including long-term debt at June 30, 1995. The Form
10-Q filed with the Commission and incorporated by reference in this Prospectus,
includes pro forma financial information for the Company without its
subsidiaries.
USE OF PROCEEDS
The proceeds from the sale of the New Bonds will be added to the general
funds of the Company and used for general corporate purposes, which may include
the purchase or redemption of one or more series of outstanding first mortgage
bonds and the repayment of outstanding short-term borrowings incurred in
connection with NSP's continuing construction program. Short-term borrowings of
the Company aggregated $169 million as of August 31, 1995. The specific
allocation of the proceeds of a particular series of the Offered Bonds will be
described in the Prospectus Supplement.
NSP'S RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1994 1993 1992 1991 1990
TWELVE MONTHS ---- ---- ---- ---- ----
ENDED
JUNE 30, 1995
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(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges...................... 3.8 4.0 4.0 3.2 3.9 3.7
New NSP Pro Forma Ratio of
Earnings to Fixed Charges.... 3.8 4.2 4.0 3.1
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, (i)
earnings consist of income from continuing operations before accounting change
plus fixed charges, federal and state income taxes,
4
<PAGE>
deferred income taxes and investment tax credits and less undistributed equity
in earnings of unconsolidated investees; and (ii) fixed charges consist of
interest on long-term debt, other interest charges, the interest component on
leases and amortization of debt discount, premium and expense.
The New NSP unaudited pro forma ratios of earnings to fixed charges for each
of the years in the three-year period ended December 31, 1994, and the twelve
months ended June 30, 1995, give effect to the Transaction as if it had occurred
at January 1, 1992. See the Notes to Unaudited Pro Forma Condensed Financial
Statements of New NSP in the Form 10-Q for a description of the assumptions used
to prepare the unaudited pro forma ratios of earnings to fixed charges.
Assuming that variable interest rate debt continues at interest rates
applicable on June 30, 1995, the annual interest requirement on long-term debt
of NSP outstanding at June 30, 1995, was $108,336,000.
DESCRIPTION OF NEW BONDS
Each series of New Bonds is to be an initial issue of a new series of first
mortgage bonds (the "Bonds") issued under the Trust Indenture dated February 1,
1937 (the "1937 Indenture") as supplemented by 44 supplemental trust indentures
(collectively, the "Supplemental Indentures"), a Supplemental and Restated Trust
Indenture dated May 1, 1988 (the "Restated Indenture") and a new supplemental
trust indenture for such series of New Bonds (the "New Supplemental Indenture"),
all from the Company to Harris Trust and Savings Bank, as trustee (the
"Trustee"). The 1937 Indenture, as supplemented by the Supplemental Indentures,
the Restated Indenture and the New Supplemental Indenture herein are referred to
collectively as the "Indenture." Excluding the New Bonds, there will be 14
series of Bonds in an aggregate principal amount of $1,094,800,000 outstanding
under the Indenture. Copies of the 1937 Indenture, the Supplemental Indentures,
the Restated Indenture and the form of the New Supplemental Indenture are filed
as Exhibits 4.01A to 4.01UU to the Registration Statement and the statements
herein made (being for the most part succinct summaries of certain provisions of
the Indenture) are subject to the detailed provisions of the 1937 Indenture, the
Supplemental Indentures, the Restated Indenture and the New Supplemental
Indenture which are incorporated herein by reference.
The Restated Indenture amends and restates the 1937 Indenture and the
Supplemental Indentures. The Restated Indenture will not become effective and
operative until all Bonds of each series issued under the Indenture prior to May
1, 1988 shall have been retired through payment or redemption (including those
Bonds "deemed to be paid" within the meaning of that term as used in Article
XVII of the 1937 Indenture) or (except as described below) until the holders of
the requisite principal amount of such Bonds shall have consented to the
amendments contained in the Restated Indenture (herein, the "Effective Date").
Holders of the New Bonds and of each series of Bonds issued under the Indenture
after May 1, 1988 likewise will be bound by the amendments contained in the
Restated Indenture when they become effective and operative. If the consent of
the holders of Bonds of each series issued prior to May 1, 1988 is not obtained
or such Bonds are not retired prior to their maturity, the Company presently
expects the Restated Indenture to become effective no earlier than December 1,
2006.
The following summary of the provisions of the Indenture includes, where
applicable, a discussion of the amendments contained in the Restated Indenture.
References are made to specific Article and Section numbers of the 1937
Indenture, the Supplemental Indentures, the Restated Indenture and the New
Supplemental Indenture. Unless the context indicates otherwise, words or phrases
defined in the 1937 Indenture, the Supplemental Indentures, the Restated
Indenture or the New Supplemental Indenture are capitalized and used with the
same meanings herein.
TERMS OF NEW BONDS
The New Bonds will be issued as fully registered bonds without coupons in
denominations of multiples of $1,000. New Bonds may be issued in temporary form
if, for any reason, the Company is unable to deliver New Bonds in definitive
form. Principal and interest are to be payable in Chicago, Illinois, at Harris
Trust and Savings Bank or in New York, New York at Harris Trust Company of New
York.
5
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New Bonds will be interchangeable in the manner provided in Article II of the
New Supplemental Indenture. The New Bonds may be issued in book-entry form
through the facilities of a depository. The description of any book-entry
arrangements will be contained in the Prospectus Supplement.
No charge will be made by the Company for any exchange or transfer of New
Bonds, other than for any taxes or other governmental charges.
Reference is made to the Prospectus Supplement that will accompany this
Prospectus for the following terms and other information with respect to the
Offered Bonds: (1) the designation and aggregate principal amount of such
Offered Bonds; (2) the date or dates on which such Offered Bonds will mature;
(3) the rate or rates per annum (or method of calculation) at which such Offered
Bonds will bear interest and the date from which such interest shall accrue; (4)
the dates on which such interest will be payable; (5) the record dates for
payments of interest; and (6) any optional or mandatory redemption terms or
other specific terms applicable to the Offered Bonds. The holders of the
outstanding Bonds do not, and the holders of the New Bonds will not, have the
right to tender such Bonds to the Company for repurchase upon the Company
becoming involved in a highly leveraged or change in control transaction. The
Indenture does not have any provision that is designed specifically in response
to highly leveraged or change in control transactions. However, bondholders
would have the security afforded by the first mortgage lien on substantially all
the Company's property as described under the subcaption "Security for New
Bonds" below. In addition, any change in control transaction and any incurrence
of additional indebtedness (as first mortgage bonds or otherwise) by the Company
in such a transaction would require approval of state utility regulatory
authorities and, possibly, of federal utility regulatory authorities. Management
believes that such approvals would be unlikely in any transaction that would
result in the Company, or a successor to the Company, having a highly leveraged
capital structure. See "PROPOSED MERGER."
SECURITY FOR NEW BONDS
In the opinion of counsel for the Company, the New Bonds when issued will be
secured equally and ratably, except as to sinking fund provisions, with all
other outstanding Bonds by a valid and direct first mortgage lien on all of the
real and fixed properties, leasehold rights, franchises and permits then owned
by the Company subject only (a) to Permitted Liens and (b) as to parts of the
Company's property, to 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, to certain minor defects in titles which are
not material and to defects in titles to certain properties not essential to the
Company's business. The Indenture contains provisions for subjecting to the lien
thereof all property, rights and franchises (except as otherwise expressly
provided) acquired by the Company after the date of the 1937 Indenture. Such
provisions might not be effective as to property acquired, within 90 days prior
and subsequent to the filing of a case, with respect to the Company, under the
United States Bankruptcy Code. The opinion of counsel does 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.
The Indenture provides that no prior liens, other than Permitted Liens, may
be created or permitted to exist upon the mortgaged and pledged property whether
now owned or hereafter acquired. (Section 4 of Article VIII of the 1937
Indenture.) Following the retirement of the Bonds of each series issued prior to
May 1, 1988, the Restated Indenture will amend the foregoing provisions to allow
Permitted Encumbrances on the mortgaged and pledged property. Permitted
Encumbrances include Permitted Liens and (a) rights of Persons who are parties
to agreements with the Company relating to property owned or used jointly (in
common) by the Company with such Persons, provided (i) that such rights do not
materially impair the use of such jointly owned or used property in the normal
operation of the Company's business and do not materially affect the security
afforded by the Indenture and (ii) that such rights are not inconsistent with
the remedies of the Trustee upon a Completed Default; (b) (i) leases existing at
the Effective Date of the Restated Indenture affecting property owned by the
Company on the Effective Date; (ii) leases which do not interfere in any
material respect with the use of the related
6
<PAGE>
property for the purpose for which it is held by the Company and which will not
have a material adverse impact on the security afforded by the Indenture or
(iii) other leases relating to not more than 5% of the sum of the Company's
Depreciable Property and Land; and (c) any mortgage, lien, charge or encumbrance
prior or equal to the Lien of the Indenture, other than a Prepaid Lien, existing
at the date any property is acquired by the Company, provided that at the date
of acquisition of such property: (i) no Default has occurred and is continuing;
(ii) the principal amount of indebtedness outstanding under and secured by such
mortgage, lien, charge or encumbrance shall not exceed 66 2/3% of the lesser of
the Cost or Fair Value of the property so acquired; and (iii) each such
mortgage, lien, charge or encumbrance shall apply only to the property and
improvements originally subject thereto and that the Company shall cause to be
closed all mortgages or other liens existing at the time of acquisition of any
property thereafter acquired by the Company and will permit no additional
indebtedness to be issued thereunder or secured thereby. (Section 1.03 of the
Restated Indenture.)
Following the retirement of the Bonds of each series issued prior to May 1,
1988, the holders of 66 2/3% of the principal amount of Bonds Outstanding may
(a) consent to the creation or existence of a Prior Lien with respect to up to
50% of the sum of the Company's Depreciable Property and Land, after giving
effect to such Prior Lien or (b) terminate the Lien of the Indenture with
respect to up to 50% of the sum of the Company's Depreciable Property and Land.
(Section 18.02(e) of the Restated Indenture.)
The Indenture is not a lien on the properties of NSP-Wisconsin, nor is the
stock of NSP-Wisconsin, NRG, Viking or any other subsidiary owned by the Company
pledged thereunder.
SINKING FUND PROVISIONS
The sinking fund redemption provision, if any, for each series of the New
Bonds will be set forth in the related Prospectus Supplement. As an annual
sinking fund, the Company covenants to pay to the Trustee annually, on October
1, an amount sufficient to redeem, for sinking fund purposes, 1% of the highest
amount, at any time outstanding, of each outstanding series of Bonds, other than
Bonds of the Series due October 1, 1997, Bonds of the Series due April 1, 2003,
Bonds of the Series due December 1, 2000, Bonds of the Series due December 1,
2005, Bonds of the Series due February 1, 1999, Bonds of the Series due October
1, 2001, Bonds of the Series due July 1, 2025 and other than Pollution Control
Series C, J, K, L and Resource Recovery Series I. Sinking fund payments may be
offset by (a) application of net Permanent Additions of a Cost or Fair Value,
whichever is less, equal to 150% of the principal amount of Bonds which
otherwise would be required to be retired by the sinking fund or (b) retirement
or delivery to the Trustee of Bonds of the series for which the sinking fund is
applicable. The Trustee is required to apply sinking fund money to the purchase
or redemption of Bonds of the series for which such money is applicable.
(Article III of each Supplemental Indenture except those dated June 1, 1942,
February 1, 1944, October 1, 1945, July 1, 1948, August 1, 1949, August 1, 1957,
October 1, 1992, April 1, 1993, December 1, 1993, February 1, 1994, October 1,
1994, June 1, 1995 and those relating to each Pollution Control Series and to
Resource Recovery Series I.)
Certain of the Bonds of Resource Recovery Series I are subject to a
mandatory sinking fund applicable to each respective series. (Section 3.02 of
the Supplemental Indenture dated December 1, 1984.)
MAINTENANCE PROVISIONS
As a Maintenance Fund for the Bonds, the Company covenants to pay to the
Trustee annually on May 1 an amount equal to 15% of the Consolidated Gross
Operating Revenues of the Company for the preceding calendar year, after
deducting from such revenues: (a) cost of electricity and gas purchased for
resale, (b) rentals paid for utility property, less credits at the Company's
option for (i) maintenance, (ii) property retirements offset by Permanent
Additions, (iii) retirements of Bonds and (iv) Cost or Fair Value, whichever is
less, of Permanent Additions after deducting property retirements. Withdrawals
from the Maintenance Fund may be made on the basis of retirements of Bonds and
net Permanent Additions, but cash in excess of $100,000 remaining on deposit in
the Maintenance Fund for more than three years must be used for the purchase or
redemption of Bonds. Any such redemption would be at the applicable
7
<PAGE>
regular redemption price of the Bonds to be redeemed and subject to any
restrictions on the redemption of such Bonds. (Article IX of the 1937 Indenture;
Article IV of the Supplemental Indenture dated June 1, 1952.)
The Restated Indenture will amend the foregoing provisions of the Indenture
by replacing the current Maintenance Fund deposit formula with the requirement
that the Company pay to the Trustee annually on May 1 an amount equal to 2.50%
of its Completed Depreciable Property as of the end of the preceding calendar
year, after deducting credits at the Company's option for (a) maintenance, (b)
property retirements offset by Permanent Additions, (c) retirements of Bonds and
(d) Amounts of Established Permanent Additions. (Section 9.01 of the Restated
Indenture.) The Restated Indenture further provides that to the extent that
Maintenance Fund credits exceed 2.50% of Completed Depreciable Property for any
year after 1987, such excess credits may be applied in future years (a) to
offset any Maintenance Fund deficiency or (b) to increase the Amount of
Established Permanent Additions available for use under the Indenture. (Section
9.05 of the Restated Indenture.) In addition, the Restated Indenture eliminates
the requirement that cash in excess of $100,000 remaining on deposit in the
Maintenance Fund for more than three years be used for the purchase or
redemption of Bonds.
The Company has covenanted to maintain its properties in adequate repair,
working order and condition. (Section 6 of Article VIII of the 1937 Indenture;
Section 8.06 of the Restated Indenture.)
ISSUANCE OF ADDITIONAL BONDS
The maximum principal amount of Bonds that may be issued under the Indenture
is not limited, except as described below. Additional Bonds may be issued on the
basis of (a) 60% of the Cost or Fair Value, whichever is less, of Permanent
Additions after deducting retirements (Article V of the 1937 Indenture; also
Sections 1 and 3 of Article III of the Supplemental Indenture dated February 1,
1944); (b) retired Bonds, which have not been otherwise used under the Indenture
(Article VI of the 1937 Indenture); and (c) deposit of an equal amount of cash
with the Trustee, which cash may be withdrawn on the same basis as additional
Bonds may be issued under clauses (a) and (b) above. (Article VII of the 1937
Indenture; Section 2 of Article III of the Supplemental Indenture dated February
1, 1944; and Article IV of the Supplemental Indenture dated June 1, 1952.) The
Restated Indenture will amend the foregoing provisions of the Indenture by
increasing the percentage in clause (a) above from 60% to 66 2/3%. (Section 5.03
of the Restated Indenture.)
The New Bonds will be issued under clause (a) and/or (b) above. At August
31, 1995, the amount of net Permanent Additions available for the issuance of
Bonds exceeded $4.2 billion, of which $500 million could be used for the
authentication of $300 million principal amount of the New Bonds. As of August
31, 1995, $327 million of retired Bonds were available for the authentication of
up to $327 million of New Bonds.
No additional Bonds may be issued on the basis of clause (a), clause (b)
under specified conditions, or clause (c), unless the Earnings Applicable to
Bond Interest for a specified twelve-month period are equal to twice the annual
interest requirements on the Bonds, including those about to be issued. (Section
4 of Article V, Section 2 of Article VI, and Section 1 of Article VII of the
1937 Indenture.)
Permanent Additions include: the Company's electric and steam generating,
transmission and distribution properties; the Company's gas storage and
distribution properties; construction work-in-progress; and fractional and
undivided property interests of the Company. (Section 4 of Article I of the 1937
Indenture; Section 1.03 of the Restated Indenture.) Under the Restated
Indenture, Permanent Additions also will include property used for providing
telephone or other communication services and engineering, financial, economic,
environmental, geological and legal or other studies, surveys or reports
associated with the acquisition or construction of any Depreciable Property.
(Section 1.03 of the Restated Indenture.)
Assuming that the interest cost on variable rate Bonds is at the maximum
allowable rate, Earnings Applicable to Bond Interest for the twelve months ended
August 31, 1995, would be 4.9 times the annual interest requirements on the
Bonds including the New Bonds at an assumed 8% interest rate. Additional
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Bonds may vary from the Offered Bonds as to maturity, interest rate, redemption
prices, and sinking fund, and in certain other respects. (Article II of the 1937
Indenture and Article II of the Restated Indenture.) The Restated Indenture will
amend the Indenture by requiring that Earnings Applicable to Bond Interest for a
specified twelve-month period be equal to twice the annual interest requirements
on the Bonds, including those about to be issued, and any obligations secured by
Prior Liens and any indebtedness secured by Permitted Encumbrances. (Sections
1.03 and 5.04 of the Restated Indenture.) Under the Restated Indenture, the
calculation of Earnings Applicable to Bond Interest will include all non-utility
revenues of the Company. (Section 1.03 of the Restated Indenture.)
PROVISION LIMITING DIVIDENDS ON COMMON STOCK
The Company has covenanted that the sum of (i) all dividends and
distributions on the common stock of the Company after September 30, 1954 (other
than in common stock), and (ii) the cost of all shares of its common stock
acquired by it after that date shall not exceed the sum of (a) the earned
surplus of the Company and its Qualified Subsidiary Companies, consolidated, at
September 30, 1954, and (b) an amount equal to the consolidated net income of
the Company and its Qualified Subsidiary Companies, earned after September 30,
1954, after making provision for all dividends accruing after that date on
preferred stock of the Company and after taking into consideration all proper
charges and credits to earned surplus made after that date. In computing net
income for the purpose of this covenant, there will be deducted an amount, if
any, by which 15% of the Consolidated Gross Operating Revenues of such
companies, after certain deductions, exceeds the aggregate of the amounts
expended for maintenance and appropriated for reserves for renewals,
replacements, retirements, depreciation or depletion. (Article IV of the
Supplemental Indenture dated October 1, 1954.) As of 1957, the Company no longer
had any Qualified Subsidiary Companies. This provision has not impaired the
Company's ability to pay dividends in the past and is not expected to do so in
the future.
The Restated Indenture will replace the dividend restriction described above
with the requirement that (a) the sum of: (i) all dividends and distributions on
the Company's common stock after the Effective Date of the Restated Indenture
(other than in common stock) and (ii) the amount, if any, by which the
Considerations given by the Company for the purchase or other acquisition of its
common stock after the Effective Date exceeds the Considerations received by it
after the Effective Date from the sale of common stock, shall not exceed (b) the
sum of (i) the retained earnings of the Company at the Effective Date, and (ii)
an amount equal to the net income of the Company earned after the Effective
Date, after deducting all dividends accruing after the Effective Date on all
classes and series of preferred stock of the Company and after taking into
consideration all proper charges and credits to earned surplus made after the
Effective Date. In computing net income for the purpose of this amended
covenant, there will be deducted the amount, if any, by which, after the date
commencing 365 days prior to the Effective Date, the actual expenditures or
charges for ordinary repairs and maintenance and the charges for reserves,
renewals, replacements, retirements, depreciation and depletion are less than
2.50% of the Company's Completed Depreciable Property. (Section 8.07 of the
Restated Indenture.)
RELEASE PROVISIONS
The Indenture contains provisions permitting the release from its lien of
any property upon depositing or pledging cash or certain other property of
comparable Fair Value. The Indenture also contains provisions for the sale or
other disposal of securities not pledged under the Indenture, contracts,
accounts, motor cars, and certain equipment and supplies; for the cancellation,
change or alteration of leases, rights-of-way and easements; and for the
surrender and modification of any franchise or governmental consent subject to
certain restrictions; in each case without any release or consent by the Trustee
or accountability thereto for any consideration received by the Company.
(Article XI of the 1937 Indenture and Article XI of the Restated Indenture.)
Following the retirement of the Bonds of each series issued prior to May 1,
1988, (a) the Company may sell or otherwise dispose of, free of the Lien of the
Indenture, all motor vehicles, vessels and marine equipment, railroad cars,
engines and related equipment, airplanes, office furniture and leasehold
interests in property owned by third parties and (b) the Company may enter into
leases with respect to
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<PAGE>
the property subject to the Lien of the Indenture which do not interfere in any
material respect with the use of such property for the purpose for which it is
held by the Company and will not have a material adverse impact on the security
afforded by the Indenture. (Section 11.02(b) of the Restated Indenture.)
Following the retirement of the Bonds of each series issued prior to May 1,
1988, any of the mortgaged and pledged property may be released from the Lien of
the Indenture if, after such release, the Fair Value of the remaining mortgaged
and pledged property equals or exceeds a sum equal to 150% of the aggregate
principal amount of Bonds Outstanding. (Section 11.03(k) of the Restated
Indenture.) When effective and upon satisfaction of the requirements set forth
in the Indenture, this provision would permit the Company to spin-off or
otherwise dispose of a substantial amount of assets or a line of business
without depositing cash or property with the Trustee or obtaining the consent of
the bondholders.
MODIFICATION OF THE INDENTURE
With the consent of the Company, the provisions of the Indenture may be
changed by the affirmative vote of the holders of 80% in principal amount of the
Bonds Outstanding except that, among other things, the maturity of a Bond may
not be extended, the interest rate reduced, nor the terms of payment of
principal or interest changed without the consent of the holder of each Bond so
affected. (Article XVIII of the 1937 Indenture.)
The Supplemental Indenture dated May 1, 1985 amended the foregoing
provisions of the Indenture by reducing the 80% requirement to 66 2/3%. This
amendment will not become effective and operative until all Bonds of each series
issued prior to May 1, 1985 shall have been retired or until all the holders
thereof shall have consented to such amendment. Holders of the New Bonds and of
each subsequent series issued under the Indenture will likewise be bound by the
amendment when it becomes effective and operative. (Article VI of the
Supplemental Indenture dated May 1, 1985 and Section 18.02 of the Restated
Indenture.)
CONCERNING THE TRUSTEE
In case of a Completed Default either the Trustee or the holders of 25% in
principal amount of (i) the Bonds Outstanding or (ii) the Bonds affected by such
default, may declare the Bonds due and payable subject to the right of the
holders of a majority of the Bonds then Outstanding to rescind or annul such
action. Further, it is obligatory upon the Trustee to take the actions provided
in the Indenture to enforce payment of the Bonds and the Lien of the Indenture
upon being requested to do so by the holders of a majority in principal amount
of the Bonds. However, the holders of a majority in principal amount of the
Bonds may direct the taking of any such action or the refraining therefrom as is
not contrary to law or the Indenture. As a condition precedent to certain
actions, the Trustee may require adequate indemnity against the costs, expenses
and liabilities to be incurred therein or thereby. (Article XIII of the 1937
Indenture; Section 6 of Article VI of Supplemental Indenture dated February 1,
1944; Section 4.03 of Supplemental Indenture dated October 1, 1945 and Article
XIII of the Restated Indenture.)
DEFAULTS
The following is a summary of events defined in the Indenture as Completed
Defaults: (a) default in payment of principal of any Bond, (b) default continued
for 90 days in payment of interest on any Bond, (c) default in the covenant
contained in Section 11 of Article VIII of the Indenture (Section 8.11 of the
Restated Indenture) with respect to bankruptcy, insolvency, assignment or
receivership and (d) default continued for 90 days after notice in the
performance of any other covenant, agreement or condition. (Section 4.02 of the
Supplemental Indenture dated October 1, 1945 and Section 13.01 of the Restated
Indenture.)
The Trustee is required to give notice to bondholders (1) within 90 days
after the occurrence of a default known to the Trustee within such period, or
(2) if the Trustee is unaware of a default during such period, then, within 30
days after the Trustee knows of such default, unless such default shall have
been cured before giving such notice; provided that, except in the case of a
default resulting from the failure to make any payment of principal of or
interest on any Bonds or to make any sinking fund payment, the
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Trustee may withhold such notice upon determination in good faith by the board
of directors, the executive committee or a trust committee of directors or
responsible officers of the Trustee that the withholding of such notice is in
the interest of the bondholders. (Section 4 of Article V of the Supplemental
Indenture dated February 1, 1944 and Section 16.02 of the Restated Indenture.)
The Company is required to file with the Trustee such information, documents
and reports with respect to compliance by the Company with the conditions and
covenants of the Indenture as may be required by the rules and regulations of
the Commission including a certificate, furnished not less frequently than
annually, as to the Company's compliance with all of the conditions and
covenants under the Indenture. (Section 8 of Article III of the Supplemental
Indenture dated February 1, 1944 and Section 8.18 of the Restated Indenture.)
GENERAL
Whenever all indebtedness secured thereby shall have been paid, or adequate
provision therefor made, the Trustee shall cancel and discharge the Indenture.
(Article XVII of the 1937 Indenture and Article XVII of the Restated Indenture.)
After the Effective Date, the Company may deposit with the Trustee any
combination of cash or Government Obligations in order to provide for the
payment of any series or all of the Bonds Outstanding. The Indenture also
provides that the Company shall furnish, to the Trustee, Officers' Certificates,
certificates of an Engineer, Appraiser or other expert and, in certain cases,
Accountants' Certificates in connection with the authentication of Bonds, the
release or release and substitution of property and certain other matters, and
Opinions of Counsel as to the Lien of the Indenture and certain other matters.
(Article IV of the Supplemental Indenture dated February 1, 1944; Articles IV,
V, VI, VII, XI and XVII and Section 20.08 of the Restated Indenture.)
LEGAL OPINIONS
Legal opinions relating to the New Bonds will be rendered by Gary R.
Johnson, 414 Nicollet Mall, Minneapolis, Minnesota, counsel for the Company, and
by Gardner, Carton & Douglas, 321 North Clark Street, Chicago, Illinois, counsel
for any underwriters, dealers or agents named in a Prospectus Supplement. Gary
R. Johnson is Vice President, General Counsel and Secretary of the Company.
Matters pertaining to local laws will be passed upon by counsel for the Company
and as to these matters Gardner, Carton & Douglas will rely on their opinions.
The opinion contained in this Prospectus under "Description of New
Bonds--Security for New Bonds," is the opinion of Gary R. Johnson. Gardner,
Carton & Douglas has acted from time to time as special counsel for NSP in
connection with certain matters, including the Transaction.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this Prospectus by reference from the Company's Annual Report on
Form 10-K (which reports express an unqualified opinion and include an
explanatory paragraph referring to the Company's change in method of accounting
for postretirement healthcare costs in 1993) have been audited by Deloitte &
Touche LLP, independent public accountants, as stated in their report included
in such Form 10-K which is incorporated herein by reference, and have been so
incorporated in reliance upon such report given upon the authority of that firm
as experts in accounting and auditing.
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of WEC for the year ended December
31, 1994 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PLAN OF DISTRIBUTION
The Company may sell the New Bonds (i) to or through underwriters or
dealers; (ii) directly to one or more purchasers; or (iii) through agents. The
Prospectus Supplement with respect to each series of
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Offered Bonds will set forth the terms of the offering of such Offered Bonds,
including the name or names of any underwriters, the purchase price of such
Offered Bonds and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or paid
to dealers and any securities exchanges on which such Offered Bonds may be
listed. Any initial offering price and any discounts, concessions or commissions
allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Bonds will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Offered
Bonds may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more of
such firms. The specific managing underwriter or underwriters, if any, will be
set forth in the Prospectus Supplement relating to the Offered Bonds together
with the members of the underwriting syndicate, if any. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase the Offered Bonds offered thereby will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all such Offered
Bonds if any are purchased.
Offered Bonds may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement will set
forth the name of any agent involved in the offer or sale of the Offered Bonds
in respect of which the Prospectus Supplement is delivered and any commissions
payable by the Company to such agent.
Any underwriters, dealers or agents participating in the distribution of the
Offered Bonds may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of the Offered Bonds may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933. Agents
and underwriters may be entitled, under agreements entered into with the
Company, to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contributions with
respect to payments which the agents or underwriters may be required to make in
respect thereof. Agents and underwriters may engage in transactions with or
perform services for the Company in the ordinary course of business.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of fees and
expenses payable by the Registrant (other than underwriting discounts and
commissions) in connection with the issuance of the New Bonds:
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933.......................... $ 103,449
Fees of rating agencies.................................................... 100,000
Printing and engraving..................................................... 75,000
Accounting services........................................................ 50,000
Trustee's charges.......................................................... 50,000
Mortgage registration tax.................................................. 675,000
Expenses and counsel fees for qualification or registration of the New
Bonds under state securities laws......................................... 20,000
Miscellaneous, including traveling, telephone, copying, shipping, and other
out-of-pocket expenses.................................................... 40,000
----------
Total.............................................................. $1,113,449
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----------
</TABLE>
All items are estimated except the first.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes permits indemnification of
officers and directors of domestic or foreign corporations under certain
circumstances and subject to certain limitations. Pursuant to authorization
contained in the Restated Articles of Incorporation, as amended, Article 4 of
the Bylaws of the Company contains provisions for indemnification of its
directors and officers consistent with the provisions of Section 302A.521 of the
Minnesota Statutes.
The Company has obtained insurance policies indemnifying the Company and the
Company's directors and officers against certain civil liabilities and related
expenses.
ITEM 16. EXHIBITS.
Certain Exhibits listed below and marked with an asterisk (*) were filed
with the Securities and Exchange Commission as Exhibits to certain Registration
Statements under the Exhibit number indicated after each such Exhibit and are
incorporated herein by this reference. These Registration Statements are
identified as follows:
<TABLE>
<S> <C>
(a) No. 2-5290.
(b) No. 2-5924.
(c) No. 2-7549.
(d) No. 2-8047.
(e) No. 2-9631.
(f) No. 2-12216.
(g) No. 2-13463.
(h) No. 2-14156.
(i) No. 2-15220.
(j) No. 2-18355.
(k) No. 2-20282.
(l) No. 2-21601.
(m) No. 2-22476.
(n) No. 2-26338.
(o) No. 2-27117.
(p) No. 2-28447.
(q) No. 2-34250.
(r) No. 2-36693.
(s) No. 2-39144.
(t) No. 2-39815.
(u) No. 2-42598.
(v) No. 2-46434.
(w) No. 2-53235.
(x) No. 2-71259.
(y) No. 2-83364.
(z) No. 2-97667.
</TABLE>
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<TABLE>
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Exhibit 1.01 Form of Underwriting Agreement for the New Bonds.
*4.01A(a) Copy of Trust Indenture, dated February 1, 1937, from the Company to
Harris Trust and Savings Bank, Trustee. (B-7)
*4.01B(a) Copy of Supplemental Trust Indenture, dated June 1, 1942, being a
supplemental instrument to Exhibit 4.01A hereto. (B-8)
*4.01C(a) Copy of Supplemental Trust Indenture, dated February 1, 1944, being a
supplemental instrument to Exhibit 4.01A hereto. (B-9 (Revised))
*4.01D(b) Copy of Supplemental Trust Indenture, dated October 1, 1945, being a
supplemental instrument to Exhibit 4.01A hereto. (7.09)
*4.01E(c) Copy of Supplemental Trust Indenture, dated July 1, 1948, being a
supplemental instrument to Exhibit 4.01A hereto. (7.05)
*4.01F(d) Copy of Supplemental Trust Indenture, dated August 1, 1949, being a
supplemental instrument to Exhibit 4.01A hereto. (7.06)
*4.01G(e) Copy of Supplemental Trust Indenture, dated June 1, 1952, being a
supplemental instrument to Exhibit 4.01A hereto. (4.08)
*4.01H(f) Copy of Supplemental Trust Indenture, dated October 1, 1954, being a
supplemental instrument to Exhibit 4.01A hereto. (4.10)
*4.01I(g) Copy of Supplemental Trust Indenture, dated September 1, 1956, being a
supplemental instrument to Exhibit 4.01A hereto. (2.09)
*4.01J(h) Copy of Supplemental Trust Indenture, dated August 1, 1957, being a
supplemental instrument to Exhibit 4.01A hereto. (2.10)
*4.01K(i) Copy of Supplemental Trust Indenture, dated July 1, 1958, being a
supplemental instrument to Exhibit 4.01A hereto. (4.12)
*4.01L(j) Copy of Supplemental Trust Indenture, dated December 1, 1960, being a
supplemental instrument to Exhibit 4.01A hereto. (2.12)
*4.01M(k) Copy of Supplemental Trust Indenture, dated August 1, 1961, being a
supplemental instrument to Exhibit 4.01A hereto. (2.13)
*4.01N(l) Copy of Supplemental Trust Indenture, dated June 1, 1962, being a
supplemental instrument to Exhibit 4.01A hereto. (2.14)
*4.01O(m) Copy of Supplemental Trust Indenture, dated September 1, 1963, being a
supplemental instrument to Exhibit 4.01A hereto. (4.16)
*4.01P(n) Copy of Supplemental Trust Indenture, dated August 1, 1966, being a
supplemental instrument to Exhibit 4.01A hereto. (2.16)
*4.01Q(o) Copy of Supplemental Trust Indenture, dated June 1, 1967, being a
supplemental instrument to Exhibit 4.01A hereto. (2.17)
*4.01R(p) Copy of Supplemental Trust Indenture, dated October 1, 1967, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01R)
*4.01S(q) Copy of Supplemental Trust Indenture, dated May 1, 1968, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01S)
*4.01T(r) Copy of Supplemental Trust Indenture, dated October 1, 1969, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01T)
*4.01U(s) Copy of Supplemental Trust Indenture, dated February 1, 1971, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01U)
*4.01V(t) Copy of Supplemental Trust Indenture, dated May 1, 1971, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01V)
</TABLE>
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Exhibit *4.01W(u) Copy of Supplemental Trust Indenture, dated February 1, 1972, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01W)
*4.01X(v) Copy of Supplemental Trust Indenture, dated January 1, 1973, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01X)
*4.01Y(w) Copy of Supplemental Trust Indenture, dated January 1, 1974, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01Y)
*4.01Z(w) Copy of Supplemental Trust Indenture, dated September 1, 1974, being a
supplemental instrument to Exhibit 4.01A hereto. (2.01Z)
*4.01AA(x) Copy of Supplemental Trust Indenture, dated April 1, 1975, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01AA)
*4.01BB(x) Copy of Supplemental Trust Indenture, dated May 1, 1975, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01BB)
*4.01CC(x) Copy of Supplemental Trust Indenture, dated March 1, 1976, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01CC)
*4.01DD(x) Copy of Supplemental Trust Indenture, dated June 1, 1981, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01DD)
*4.01EE(y) Copy of Supplemental Trust Indenture, dated December 1, 1981, being a
supplemental instrument to Exhibit 4.01A hereto. (4.01EE)
*4.01FF(z) Copy of Supplemental Trust Indenture, dated May 1, 1983, being a
supplemental instrument to Exhibit 4.01A hereto.
*4.01GG(z) Copy of Supplemental Trust Indenture, dated December 1, 1983, being a
supplemental instrument to Exhibit 4.01A hereto.
*4.01HH(z) Copy of Supplemental Trust Indenture, dated September 1, 1984, being a
supplemental instrument to Exhibit 4.01A hereto.
*4.01II(z) Copy of Supplemental Trust Indenture, dated December 1, 1984, being a
supplemental instrument to Exhibit 4.01A hereto.
4.01JJ Copy of Supplemental Trust Indenture, dated May 1, 1985, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.36
to the Company's Annual Report on Form 10-K (File No. 1-3034) for the
year ended December 31, 1985 and incorporated herein by reference.
4.01KK Copy of Supplemental Trust Indenture, dated September 1, 1985, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.37
to the Company's Annual Report on Form 10-K (File No. 1-3034) for the
year ended December 31, 1985, and incorporated herein by reference.
4.01LL Copy of Supplemental and Restated Trust Indenture, dated May 1, 1988,
being a supplemental instrument to Exhibit 4.01A hereto, filed as
Exhibit 4.02 to the Company's Annual Report on Form 10-K (File No.
1-3034) for the year ended December 31, 1988, and incorporated herein
by reference.
4.01MM Copy of Supplemental Trust Indenture, dated July 1, 1989, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
July 2, 1989, and incorporated herein by reference.
4.01NN Copy of Supplemental Trust Indenture, dated June 1, 1990, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
June 6, 1990, and incorporated herein by reference.
</TABLE>
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<TABLE>
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Exhibit 4.01OO Copy of Supplemental Trust Indenture, dated October 1, 1992, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
October 13, 1992, and incorporated herein by reference.
4.01PP Copy of Supplemental Trust Indenture, dated April 1, 1993, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
March 30, 1993, and incorporated herein by reference.
4.01QQ Copy of Supplemental Trust Indenture, dated December 1, 1993, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
December 7, 1993, and incorporated herein by reference.
4.01RR Copy of Supplemental Trust Indenture, dated February 1, 1994, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
February 10, 1994, and incorporated herein by reference.
4.01SS Copy of Supplemental Trust Indenture, dated October 1, 1994, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
October 5, 1994, and incorporated herein by reference.
4.01TT Copy of Supplemental Trust Indenture, dated June 1, 1995, being a
supplemental instrument to Exhibit 4.01A hereto, filed as Exhibit 4.01
to the Company's Current Report on Form 8-K (File No. 1-3034) dated
June 28, 1995, and incorporated herein by reference.
4.01UU Form of Supplemental Trust Indenture, for each series of New Bonds,
being a supplemental instrument to Exhibit 4.01A hereto.
5.01 Opinion of Gary R. Johnson as to legality of the New Bonds.
12.01 NSP statement of Computation of ratios of earnings to fixed charges.
12.02 New NSP statement of computation of pro forma ratios of earnings to
fixed charges.
23.01 Independent Auditor's Consent
23.02 Consent of Legal Counsel
23.03 Consent of Independent Certified Public Accountants
24.01 Power of Attorney.
25.01 Form T-1 Statement of eligibility of Harris Trust and Savings Bank to
act as Trustee under the Indenture which will secure the New Bonds.
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include
any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in
II-4
<PAGE>
the aggregate, the changes in volume and price represented no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that clauses (i) and (ii) above do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
THE REQUIREMENTS OF FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MINNEAPOLIS, AND STATE OF MINNESOTA, ON THE 6TH DAY
OF OCTOBER 1995.
NORTHERN STATES POWER COMPANY
By Arland D. Brusven, Vice President
-- Finance
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------
James J. Howard Principal Executive Officer
and Director
Edward J. McIntyre Principal Financial Officer
Roger D. Sandeen Principal Accounting Officer
H. Lyman Bretting Director
David A. Christensen Director
W. John Driscoll Director
Dale L. Haakenstad Director
Allen F. Jacobson Director
Richard M. Kovacevich Director
Douglas W. Leatherdale Director
John E. Pearson Director
G. M. Pieschel Director
Margaret R. Preska Director
A. Patricia Sampson Director
Edwin M. Theisen Director
October 6, 1995
By Arland D. Brusven (attorney-in-fact)
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
METHOD OF
FILING EXHIBIT NO. DESCRIPTION
- --------------- ------------ ------------------------------------------------------------------------------------------
<S> <C> <C>
DT 1.01 Form of Underwriting Agreement for the New Bonds.
DT 4.01UU Form of Supplemental Trust Indenture, for each series of New Bonds, being a supplemental
instrument to Exhibit 4.01A hereto.
DT 5.01 Opinion of Gary R. Johnson as to legality of the New Bonds.
DT 12.01 NSP statement of Computation of ratio of earnings to fixed charges.
DT 12.02 New NSP statement of computation of pro forma ratios of earnings to fixed charges.
DT 23.01 Independent Auditor's Consent
DT 23.02 Consent of Legal Counsel
DT 23.03 Consent of Independent Certified Public Accountants
DT 24.01 Power of Attorney.
DT 25.01 Form T-1 Statement of eligibility of Harris Trust and Savings Bank to act as Trustee under
the Indenture which will secure the New Bonds.
</TABLE>
DT -- Filed electronically with this direct transmission.
<PAGE>
FORM OF OCTOBER 6, 1995
NORTHERN STATES 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 Harris 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, 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 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
1
<PAGE>
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 Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B)
the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP and Price Waterhouse LLP which audited certain
of the financial statements incorporated by reference in the Registration
Statement, are each independent public accountants 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 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
2
<PAGE>
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
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
3
<PAGE>
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; 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
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 third 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 Close Date.
4
<PAGE>
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 make a filing with the Commission pursuant to Section 13
or 14 of the Exchange Act, which will correct such statement or omission or
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of
such period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)
under the Act), which will satisfy the provision of Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T-1 of the Trustee 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.
5
<PAGE>
(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 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 Gary R. Johnson, Vice President, General Counsel and
Corporate Secretary of the Company, substantially in the form included as
Exhibit A.
(c) The Representatives shall have received from Gardner, Carton &
Douglas, 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 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
6
<PAGE>
(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
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 amounts in the unaudited pro forma financial
information, nothing came to their attention that caused them to believe
that the
7
<PAGE>
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 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 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.
8
<PAGE>
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 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
9
<PAGE>
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 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 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
10
<PAGE>
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.
(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
11
<PAGE>
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.
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 414 Nicollet Mall, Minneapolis, Minnesota 55401, 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.
12
<PAGE>
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.
13
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-
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 1 and 1 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:
- ------------
* If applicable.
14
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME AMOUNT
- -------------------------------------------------------------------------------------------------- --------------
<S> <C>
............................................................................... $
...............................................................................
...............................................................................
--------------
Total..................................................................................... $
--------------
--------------
</TABLE>
15
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
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 Harris 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;
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
1
<PAGE>
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 captions "Description of New Bonds" and "Supplemental Description
of Offered 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
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;
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
2
<PAGE>
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 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
----------------------------------------
Gary R. Johnson
Vice President, General Counsel and
Corporate Secretary
Northern States Power Company
3
<PAGE>
FORM OF
SUPPLEMENTAL TRUST INDENTURE
FROM
NORTHERN STATES POWER COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE
--------------
DATED
--------------
SUPPLEMENTAL TO TRUST INDENTURE
DATED FEBRUARY 1, 1937
AND
SUPPLEMENTAL AND RESTATED
TRUST INDENTURE DATED
MAY 1, 1988
<PAGE>
TABLE OF CONTENTS
--------------
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
Parties.................................................................................................... 1
Recitals................................................................................................... 1
Form of Bonds of Series Due ................................................................ 2
Form of Trustee's Certificate.............................................................................. 5
Further Recitals........................................................................................... 5
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO THE LIEN OF
THE ORIGINAL INDENTURE.
Section 1.01-- Grant of certain property, including personal property to comply with the Uniform
Commercial Code, subject to permitted liens and other exceptions contained in 1937
Indenture............................................................................ 6
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SERIES DUE .
Section 2.01-- Terms of bonds....................................................................... 7
Section 2.02-- Redemption of bonds.................................................................. 8
Section 2.03-- Interchangeability of bonds.......................................................... 8
Section 2.04-- Charges for exchange or transfer of bonds............................................ 9
Section 2.05-- Execution of bonds................................................................... 9
Section 2.06-- Book-Entry System.................................................................... 9
ARTICLE III.
[NOTE: PROVISIONS RELATING TO A SINKING FUND WILL BE OMITTED IF A SINKING
FUND IS NOT ESTABLISHED FOR A PARTICULAR SERIES OF BONDS]
SINKING FUND.
Section 3.01--(a) Sinking Fund established for bonds of Series due .................... 11
(b) Bonds delivered to Trustee equivalent to cash under Section 3.01(a).................. 12
(c) Permanent additions to the extent available as basis for issuance of bonds,
equivalent to cash under Section 3.01(a)............................................. 12
Section 3.02--(a) Moneys to be applied to purchase or redemption of bonds of Series due
..................................................................... 12
(b) Bonds to be selected by lot.......................................................... 13
(c) Effect of deposit of moneys for redemption........................................... 13
(d) Exchange of registered bonds for unredeemed balance of registered bonds.............. 13
Section 3.03-- Bonds purchased or redeemed to be cancelled.......................................... 13
ARTICLE IV.
APPOINTMENT OF AUTHENTICATING AGENT.
Section 4.01-- Appointment of agent or agents for bonds of Series due ............... 13
</TABLE>
<PAGE>
ii
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
Section 4.02--(a) Qualification of agents.............................................................. 13
(b) Continuation of agent upon merger or consolidation................................... 13
(c) Termination of successor agent....................................................... 14
(d) Compensation of agent................................................................ 14
Section 4.03-- Form of alternate certificate of authentication...................................... 14
Section 4.04-- Limit on location and number of agents............................................... 14
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE
UNIFORM COMMERCIAL CODE.
Section 5.01-- Names and addresses of debtor and secured party...................................... 15
Section 5.02-- Property subject to lien............................................................. 15
Section 5.03-- Maturity dates and principal amounts of obligations secured.......................... 15
Section 5.04-- Financing Statement adopted for all First Mortgage Bonds listed in Section 5.03...... 15
Section 5.05-- Recording data for the 1937 Indenture and prior Supplemental Trust Indentures........ 15
Section 5.06-- Financing Statement covers additional series of First Mortgage Bonds................. 16
ARTICLE VI.
AMENDMENTS TO INDENTURE.
Section 6.01-- Consent of holders of Bonds.......................................................... 17
ARTICLE VII.
MISCELLANEOUS.
Section 7.01-- Recitals of fact, except as stated, are statements of the Company.................... 17
Section 7.02-- Supplemental Trust Indenture to be construed as a part of the 1937 Indenture, as
supplemented......................................................................... 17
Section 7.03--(a) Trust Indenture Act to control....................................................... 17
(b) Severability of conditions contained in Supplemental Trust Indenture and bonds....... 17
Section 7.04-- Word "Indenture" as used herein includes in its meaning the 1937 Indenture and all
indentures supplemental thereto...................................................... 17
Section 7.05-- References to either party in Supplemental Trust Indenture include successors or
assigns.............................................................................. 17
Section 7.06--(a) Provision for execution in counterparts.............................................. 18
(b) Table of Contents and descriptive headings of Articles not to affect meaning......... 18
--------------
Schedule A................................................................................................. A-1
</TABLE>
<PAGE>
Supplemental Trust Indenture, made as of the st day of , by and
between NORTHERN STATES POWER COMPANY, a corporation duly organized and existing
under and by virtue of the laws of the State of Minnesota, having its principal
office in the City of Minneapolis in said State (the "Company"), party of the
first part, and HARRIS TRUST AND SAVINGS BANK, a corporation duly organized and
existing under and by virtue of the laws of the State of Illinois, having its
principal office in the City of Chicago in said State, as Trustee (the
"Trustee"), party of the second part;
WITNESSETH:
WHEREAS, the Company heretofore has executed and delivered to the Trustee
its Trust Indenture (the "1937 Indenture"), made as of February 1, 1937, whereby
the Company granted, bargained, sold, warranted, released, conveyed, assigned,
transferred, mortgaged, pledged, set over, and confirmed to the Trustee, and to
its respective successors in trust, all property, real, personal, and mixed then
owned or thereafter acquired or to be acquired by the Company (except as therein
excepted from the lien thereof) and subject to the rights reserved by the
Company in and by the provisions of the 1937 Indenture, to be held by said
Trustee in trust in accordance with provisions of the 1937 Indenture for the
equal pro rata benefit and security of all and every of the bonds issued
thereunder in accordance with the provisions thereof; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental Trust Indenture, made as of June 1, 1942, whereby the Company
conveyed, assigned, transferred, mortgaged, pledged, set over, and confirmed to
the Trustee, and its respective successors in said trust, additional property
acquired by it subsequent to the date of the 1937 Indenture; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee
the following additional Supplemental Trust Indentures which, in addition to
conveying, assigning, transferring, mortgaging, pledging, setting over, and
confirming to the Trustee, and its respective successors in said trust,
additional property acquired by it subsequent to the preparation of the next
preceding Supplemental Trust Indenture and adding to the covenants, conditions,
and agreements of the 1937 Indenture certain additional covenants, conditions,
and agreements to be observed by the Company, created the following series of
First Mortgage Bonds:
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
February 1, 1944 Series due February 1, 1974 (retired)
October 1, 1945 Series due October 1, 1975 (retired)
July 1, 1948 Series due July 1, 1978 (retired)
August 1, 1949 Series due August 1, 1979 (retired)
June 1, 1952 Series due June 1, 1982 (retired)
October 1, 1954 Series due October 1, 1984 (retired)
September 1, 1956 Series due 1986 (retired)
August 1, 1957 Series due August 1, 1987 (redeemed)
July 1, 1958 Series due July 1, 1988 (retired)
December 1, 1960 Series due December 1, 1990 (retired)
August 1, 1961 Series due August 1, 1991 (retired)
June 1, 1962 Series due June 1, 1992 (retired)
September 1, 1963 Series due September 1, 1993 (retired)
August 1, 1966 Series due August 1, 1996 (redeemed)
June 1, 1967 Series due June 1, 1995 (redeemed)
October 1, 1967 Series due October 1, 1997 (redeemed)
May 1, 1968 Series due May 1, 1998 (redeemed)
October 1, 1969 Series due October 1, 1999 (redeemed)
February 1, 1971 Series due March 1, 2001 (redeemed)
May 1, 1971 Series due June 1, 2001 (redeemed)
February 1, 1972 Series due March 1, 2002
January 1, 1973 Series due February 1, 2003
January 1, 1974 Series due January 1, 2004 (redeemed)
September 1, 1974 Pollution Control Series A (redeemed)
April 1, 1975 Pollution Control Series B (redeemed)
May 1, 1975 Series due May 1, 2005 (redeemed)
March 1, 1976 Pollution Control Series C
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
June 1, 1981 Pollution Control Series D, E and F (redeemed)
December 1, 1981 Series due December 1, 2011 (redeemed)
May 1, 1983 Series due May 1, 2013 (redeemed)
December 1, 1983 Pollution Control Series G (redeemed)
September 1, 1984 Pollution Control Series H (redeemed)
December 1, 1984 Resource Recovery Series I
May 1, 1985 Series due June 1, 2015 (redeemed)
September 1, 1985 Pollution Control Series J, K and L
July 1, 1989 Series due July 1, 2019 (redeemed)
June 1, 1990 Series due June 1, 2020 (redeemed)
October 1, 1992 Series due October 1, 1997
April 1, 1993 Series due April 1, 2003
December 1, 1993 Series due December 1, 2000, and December 1, 2005
February 1, 1994 Series due February 1, 1999
October 1, 1994 Series due October 1, 2001
June 1, 1995 Series due July 1, 2025
; and
</TABLE>
WHEREAS, the 1937 Indenture and all of the foregoing Supplemental Trust
Indentures are referred to herein collectively as the "Original Indenture;" and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental and Restated Trust Indenture, dated May 1, 1988 (the "Restated
Indenture"), which, in addition to conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee, and its
respective successors in said trust, additional property acquired by it
subsequent to the preparation of the next preceding Supplemental Trust
Indenture, amended and restated the Original Indenture; and
WHEREAS, the Restated Indenture will not become effective and operative
until all bonds of each series issued under the Original Indenture prior to May
1, 1988 shall have been retired through payment or redemption (including those
bonds "deemed to be paid" within the meaning of that term as used in Article
XVII of the 1937 Indenture) or until, subject to certain exceptions, the holders
of the requisite principal amount of such bonds shall have consented to the
amendments contained in the Restated Indenture (such date being herein called
the "Effective Date"); and
WHEREAS, the Original Indenture and the Restated Indenture are referred to
herein collectively as the "Indenture"; and
WHEREAS, the Indenture provides that bonds may be issued thereunder in one
or more series, each series to have such distinctive designation as the Board of
Directors of the Company may select for such series; and
WHEREAS, the Company is desirous of providing for the creation of a new
series of First Mortgage Bonds, said new series of bonds to be designated "First
Mortgage Bonds, Series due ," the bonds of said series to be issued as
registered bonds without coupons in denominations of a multiple of $1000, and
the bonds of said series to be substantially in the form and of the tenor
following [with the redemption prices inserted therein in conformity with the
provisions of Section 2.02 hereof,], to-wit:
(Form of Bonds of Series due )
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
First Mortgage Bond
Series due
No. ______________ $ ______________
<PAGE>
3
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation, to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]*
NORTHERN STATES POWER COMPANY, a corporation organized and existing under
the laws of the State of Minnesota (the "Company"), for value received, hereby
promises to pay to or registered assigns, at the office of the
Trustee, in Chicago, Illinois, or, at the option of the registered owner, at the
agency of the Company in the Borough of Manhattan, City and State of New York,
the sum of Dollars in lawful money of the United States of
America, on the day of , and to pay interest hereon from the date
hereof at the rate of percent per annum, in like money, until
the Company's obligation with respect to the payment of such principal sum shall
be discharged; said interest being payable at the option of the person entitled
to such interest either at the office of the Trustee, in Chicago, Illinois, or
at the agency of the Company in the Borough of Manhattan, City and State of New
York, on the day of and on the day of in each year provided that
as long as there is no existing default in the payment of interest and except
for the payment of defaulted interest, the interest payable on any or
will be paid to the person in whose name this bond was registered at the
close of business on the record date (the prior to such or
the prior to such unless any such date is not a business day, in
which event it will be the next preceding business day).
["EXCEPT UNDER THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THESE
GLOBAL BONDS MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY, ANOTHER NOMINEE OF THE DEPOSITORY,
A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR."]*
This bond is one of a duly authorized issue of bonds of the Company, of the
series and designation indicated on the face hereof, which issue of bonds
consists, or may consist, of several series of varying denominations, dates, and
tenor, all issued and to be issued under and equally secured (except insofar as
a sinking fund, or similar fund, established in accordance with the provisions
of the Indenture may afford additional security for the bonds of any specific
series) by a Trust Indenture dated February 1, 1937 (the "1937 Indenture"), as
supplemented by supplemental trust indentures (collectively, the "Supplemental
Indentures"), a Supplemental and Restated Trust Indenture dated May 1, 1988 (the
"Restated Indenture") and a new supplemental trust indenture for the bonds of
this series (the "New Supplemental Indenture"), executed by the Company to
Harris Trust and Savings Bank, as Trustee (the "Trustee"). The 1937 Indenture,
as supplemented by the Supplemental Indentures, the Restated Indenture and the
New Supplemental Indenture herein are referred to collectively as the
"Indenture". Reference hereby is made to the Indenture for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds as to such security, and the terms and
conditions upon which the bonds may be issued under the Indenture and are
secured. The principal hereof may be declared or may become due on the
conditions, in the manner and at the time set forth in the Indenture, upon the
happening of a default as in the Indenture provided.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and of the
holders of the bonds, and the terms and provisions of the Indenture and of any
instruments supplemental thereto may be modified or altered by affirmative vote
of the holders of at least 80% in principal amount of the bonds then outstanding
under the Indenture and any instruments supplemental thereto (excluding bonds
challenged and disqualified from voting by reason of the Company's interest
therein as provided in the Indenture); provided that without the consent of all
holders of all bonds affected no such modification or alteration shall permit
the extension of the maturity of the principal of
- ------------------------
*This legend is to be included if the bonds are issued as a Global bond in
book-entry form.
<PAGE>
4
any bond or the reduction in the rate of interest thereon or any other
modification in the terms of payment of such principal or interest. The
foregoing 80% requirement will be reduced to 66 2/3% when all bonds of each
series issued under the Indenture prior to May 1, 1985, shall have been retired
or all the holders thereof shall have consented to such reduction.
The Restated Indenture amends and restates the 1937 Indenture and the
Supplemental Indentures. The Restated Indenture will become effective and
operative (the "Effective Date") when all Bonds of each series issued under the
Indenture prior to May 1, 1988 shall have been retired through payment or
redemption (including those bonds "deemed to be paid" within the meaning of that
term as used in Article XVII of the 1937 Indenture) or until, subject to certain
exceptions, the holders of the requisite principal amount of such bonds shall
have consented to the amendments contained in the Restated Indenture. Holders of
the bonds of this series and of each subsequent series of bonds issued under the
Indenture likewise will be bound by the amendments contained in the Restated
Indenture when they become effective and operative. Reference is made to the
Restated Indenture for a complete description of the amendments contained
therein to the 1937 Indenture and to the Supplemental Indentures.
The Company and the Trustee may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose of receiving
payment and for all other purposes and shall not be affected by any notice to
the contrary.
[At the option of the Company, and upon not less than 30 days' notice prior
to the date fixed for redemption, in the manner and with the effect provided in
the Indenture, any or all of the bonds of this Series due , may be
redeemed, other than for the Sinking Fund provided for bonds of this series, by
the Company on any date by the payment of principal, the accrued interest to the
date of redemption, and the applicable premium on the principal amount specified
in the tabulation below under the heading "Regular Redemption Premium," provided
that no bond of the Series due , shall be redeemed (other than through
said Sinking Fund) prior to , and this bond is entitled to the
benefits of and is subject to call for redemption at par for the Sinking Fund on
December 1 of each year beginning , upon like notice and in the manner and
with the effect provided in the Indenture, by the payment of principal and
accrued interest to the date of redemption:
<TABLE>
<S> <C>
If Redeemed During Regular
the Twelve Month Redemption
Period Premium
Beginning
</TABLE>
- --------------------------------------------------------------------------------
(REDEMPTION PREMIUMS ARE TO BE INSERTED IN EACH BOND IN CONFORMITY WITH SECTION
2.02)
[Bonds of this series are not redeemable prior to maturity, for any reason,
and are not subject to a sinking fund.]
This bond is transferable as prescribed in the Indenture by the registered
owner hereof in person, or by his duly authorized attorney, at the office of the
Trustee in Chicago, Illinois, or at the option of the owner at the agency of the
Company in the Borough of Manhattan, City and State of New York, or elsewhere if
authorized by the Company, upon surrender and cancellation of this bond, and
thereupon a new bond or bonds of the same series and of a like aggregate
principal amount will be issued to the transferee in exchange therefor as
provided in the Indenture, upon payment of taxes or other governmental charges,
if any, that may be imposed in relation thereto.
Bonds of this series are interchangeable as to denominations in the manner
and upon the conditions prescribed in the Indenture.
No charge shall be made by the Company for any exchange or transfer of bonds
of the Series due , other than for taxes or other governmental
charges, if any, that may be imposed in relation thereto.
No recourse shall be had for the payment of the principal of or the interest
on this bond, or any part thereof, or of any claim based hereon or in respect
hereof or of said Indenture, against any incorporator, or any past,
<PAGE>
5
present, or future shareholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company, or
through any such predecessor or successor corporation, or through any receiver
or a trustee in bankruptcy, whether by virtue of any constitution, statute, or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released, as more fully provided in
the Indenture.
This bond shall not be valid or become obligatory for any purpose unless and
until the certificate of authentication hereon shall have been signed by or on
behalf of Harris Trust and Savings Bank, as Trustee under the Indenture, or its
successor thereunder.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this bond to be
executed in its name by its President or a Vice President and its corporate
seal, or a facsimile thereof, to be hereto affixed and attested by its Secretary
or an Assistant Secretary.
Dated: ____________________________ NORTHERN STATES POWER COMPANY
Attest: ________________________ By ___________________________________
_________ Secretary _________ President
(Form of Trustee's Certificate)
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee,
By _________________________________
Authorized Officer
and
WHEREAS, the Company is desirous of conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee and to its
respective successors in trust, additional property acquired by it subsequent to
the date of the preparation of the Supplemental Trust Indenture dated
; and
WHEREAS, the Indenture provides in substance that the Company and the
Trustee may enter into indentures supplemental thereto for the purposes, among
others, of creating and setting forth the particulars of any new series of bonds
and of providing the terms and conditions of the issue of the bonds of any
series not expressly provided for in the Indenture and of conveying, assigning,
transferring, mortgaging, pledging, setting over, and confirming to the Trustee
additional property of the Company, and for any other purpose not inconsistent
with the terms of the Indenture; and
WHEREAS, the execution and delivery of this Supplemental Trust Indenture has
been duly authorized by a resolution adopted by the Board of Directors of the
Company; and
WHEREAS, the Trustee has duly determined to execute this Supplemental Trust
Indenture and to be bound, insofar as it may lawfully do so, by the provisions
hereof;
Now THEREFORE, Northern States Power Company, in consideration of the
premises and of one dollar duly paid to it by the Trustee at or before the
ensealing and delivery of these presents, the receipt of which is hereby
acknowledged, and other good and valuable considerations, does hereby covenant
and agree to and with Harris Trust and Savings Bank, as Trustee, and its
successors in the trust under the Indenture for the benefit of those who hold or
shall hold the bonds, or any of them, issued or to be issued thereunder as
follows:
<PAGE>
6
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO
THE LIEN OF THE ORIGINAL INDENTURE.
SECTION 1.01. The Company in order to better secure the payment, of both the
principal and interest, of all bonds of the Company at any time outstanding
under the Indenture according to their tenor and effect and the performance of
and compliance with the covenants and conditions contained in the Indenture, has
granted, bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, and confirmed and by these presents does grant,
bargain, sell, warrant, release, convey, assign, transfer, mortgage, pledge, set
over, and confirm to the Trustee and to its respective successors in said trust
forever, subject to the rights reserved by the Company in and by the provisions
of the Indenture, all of the property described and mentioned or enumerated in a
schedule annexed hereto and marked Schedule A, reference to said schedule being
made hereby with the same force and effect as if the same were incorporated
herein at length; together with all and singular the tenements, hereditaments,
and appurtenances belonging and in any way appertaining to the aforesaid
property or any part thereof with the reversion and reversions, remainder and
remainders, tolls, rents and revenues, issues, income, products, and profits
thereof;
Also, in order to subject the personal property and chattels of the Company
to the lien of the Indenture and to conform with the provisions of the Uniform
Commercial Code, all fossil, nuclear, hydro, and other electric generating
plants, including buildings and other structures, turbines, generators,
exciters, boilers, reactors, nuclear fuel, other boiler plant equipment,
condensing equipment and all other generating equipment; substations; electric
transmission and distribution systems, including structures, poles, towers,
fixtures, conduits, insulators, wires, cables, transformers, services and
meters; steam heating mains and equipment; gas transmission and distribution
systems, including structures, storage facilities, mains, compressor stations,
purifier stations, pressure holders, governors, services, and meters; telephone
plant and related distribution systems; trucks and trailers; office, shop, and
other buildings and structures, furniture and equipment; apparatus and equipment
of all other kinds and descriptions; materials and supplies; all municipal and
other franchises, leaseholds, licenses, permits, privileges, patents and patent
rights; all shares of stock, bonds, evidences of indebtedness, contracts,
claims, accounts receivable, choses in action and other intangibles, all books
of account and other corporate records;
Excluding, however, all merchandise and appliances heretofore or hereafter
acquired for the purpose of sale to customers and others;
All the estate, right, title, interest, and claim, whatsoever, at law as
well as in equity, which the Company now has or hereafter may acquire in and to
the aforesaid property and every part and parcel thereof subject, however, to
the right of the Company, until the happening of a completed default as defined
in Section 1 of Article XIII of the Original Indenture prior to the Effective
Date and upon the occurrence and continuation of a Completed Default as defined
in the Indenture on and after the Effective Date, to retain in its possession
all shares of stock, notes, evidences of indebtedness, other securities and cash
not expressly required by the provisions hereof to be deposited with the
Trustee, to retain in its possession all contracts, bills and accounts
receivable, motor cars, any stock of goods, wares and merchandise, equipment or
supplies acquired for the purpose of consumption in the operation, construction,
or repair of any of the properties of the Company, and to sell, exchange,
pledge, hypothecate, or otherwise dispose of any or all of such property so
retained in its possession free from the lien of the Indenture, without
permission or hindrance on the part of the Trustee, or any of the bondholders.
No person in any dealings with the Company in respect of any such property shall
be charged with any notice or knowledge of any such completed default (prior to
the Effective Date) or Completed Default (after the Effective Date) under the
Indenture while the Company is in possession of such property. Nothing contained
herein or in the Indenture shall be deemed or construed to require the deposit
with, or delivery to, the Trustee of any of such property, except such as is
specifically required to be deposited with the Trustee by some express provision
of the Indenture;
<PAGE>
7
To have and to hold all said property, real, personal, and mixed, granted,
bargained, sold, warranted, released, conveyed, assigned, transferred,
mortgaged, pledged, set over, or confirmed by the Company as aforesaid, or
intended so to be, to the Trustee and its successors and assigns forever,
subject, however, to permitted liens as defined in Section 5 of Article I of the
1937 Indenture prior to the Effective Date and to Permitted Encumbrances on and
after the Effective Date and to the further reservations, covenants, conditions,
uses, and trusts set forth in the Indenture; in trust nevertheless for the same
purposes and upon the same conditions as are set forth in the Indenture.
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SERIES DUE
SECTION 2.01. There hereby is created, for issuance under the Indenture, a
series of bonds designated Series due , each of which shall bear the
descriptive title "First Mortgage Bond, Series due , and the form
thereof shall contain suitable provisions with respect to the matters hereafter
specified in this Section. The bonds of said series shall be substantially of
the tenor and purport hereinbefore recited. The bonds of said series shall
mature , and shall be issued as registered bonds without coupons in
denominations of a multiple of $1,000. The bonds of said series shall bear
interest at the rate of % per annum payable semi-annually on and
of each year, and the principal shall be payable at the office of the Trustee in
Chicago, Illinois, or at the option of the registered owner at the agency of the
Company in the Borough of Manhattan, City and State of New York, in lawful money
of the United States of America, and the interest shall be payable in like money
at the option of the person entitled to such interest either at said office of
the Trustee in Chicago, Illinois, or at the agency of the Company in the Borough
of Manhattan, City and State of New York. Bonds of the Series due ,
shall be dated as of the interest payment date next preceding the authentication
thereof by the Trustee except that (i) if any bond shall be authenticated before
, it shall be dated as of , unless (iii) below is
applicable, (ii) if the Company shall at the time of the authentication of a
bond of the Series due , be in default in the payment of interest upon
the bonds of the Series due , such bond shall be dated as of the date
of the beginning of the period for which such interest is so in default, and
(iii) as long as there is no existing default in the payment of interest on the
bonds of the Series due , if any bond of the Series due ,
shall be authenticated after the close of business on any Record Date but on or
prior to the interest payment date relating to such Record Date, it shall be
dated as of such interest payment date.
As long as there is no existing default in the payment of interest on the
bonds of the Series due , the person in whose name any bond of the
Series due , is registered at the close of business on any Record Date
with respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date notwithstanding any transfer or
exchange of such bond of the Series due , subsequent to the Record
Date and on or prior to such interest payment date, except as and to the extent
the Company shall default in the payment of the interest due on such interest
payment date, in which case such defaulted interest shall be paid to the person
in whose name such bond of the Series due , is registered on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice thereof shall be given to the registered holder of any bond of
the Series due , not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the bonds of the
Series due may be listed, and upon such notice as may be required by
such exchange.
The term "Record Date" as used herein with respect to any interest payment
date ( or ) shall mean the prior to such or
prior to such unless such or shall not be a business
day, in which event "Record Date" shall mean the next preceding business day.
The term "business day" as used herein shall mean any day other than a Saturday
or a Sunday or a day on which the offices of the Trustee in the City of Chicago,
Illinois, are closed pursuant to authorization of law.
As used in this Section 2.01, the term "default in the payment of interest"
means failure to pay interest on the applicable interest payment date
disregarding any period of grace permitted by the Indenture.
<PAGE>
8
The "Special Record Date" as used herein shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each bond of the Series due
, and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such defaulted interest as provided in this
Section 2.01. Thereupon the Trustee shall fix a Special Record Date for the
payment of such defaulted interest which shall be not more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such defaulted interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each holder of the bonds of the Series
due , at his address as it appears in the bond register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of
such defaulted interest and the Special Record Date therefor having been mailed
as aforesaid, such defaulted interest shall be paid to the persons in whose
names the bonds of the Series due , are registered on such Special
Record Date and shall not be payable pursuant to the paragraph immediately
following in this Section 2.01.
The Company may make payment of any defaulted interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the bonds of the Series due , may be listed, and upon such
notice as may be required by such exchange, if, after notice is given by the
Company to the Trustee of the proposed payment pursuant to this Section 2.01,
such payment shall be deemed practicable by the Trustee.
SECTION 2.02. The bonds of the Series due , shall be redeemable,
other than for the Sinking Fund for bonds of that series provided for in Article
III hereof, at the option of the Company as a whole or in part on any date upon
not less than 30 days' previous notice to be given in the manner and with the
effect provided in Section 2 of Article X of the 1937 Indenture (except that, on
and after the Effective Date, such notice shall be given in the manner and
effect provided in Section 10.02 of the Indenture) at the principal amount
thereof, with accrued interest thereon to the date of redemption and at the
applicable premium on the principal amount specified in the tabulation below
under the heading "Regular Redemption Premium," provided that no bond of the
Series due , shall be redeemed (other than through said Sinking Fund)
prior to and the bonds of the Series due , shall be subject
to call for redemption at par for the Sinking Fund on December 1 of each year
beginning , upon not less than 30 days' previous notice to be given in the
manner and with the effect provided in Article III hereof and in Section 2 of
Article X of the 1937 Indenture (except that, on and after the Effective Date,
such notice shall be given in the manner and effect provided in Section 10.02 of
the Indenture and in Article III hereof) at the principal amount thereof and
accrued interest thereon to the date of redemption;
<TABLE>
<CAPTION>
IF REDEEMED DURING IF REDEEMED DURING
THE THE
TWELVE MONTH REGULAR REDEMPTION TWELVE MONTH REGULAR REDEMPTION
PERIOD BEGINNING PREMIUM PERIOD BEGINNING PREMIUM
- --------------------- ------------------- --------------------- -------------------
<S> <C> <C> <C>
</TABLE>
The redemption prices of the bonds of the Series due , need not be
specified in any temporary bond of said series if an appropriate reference be
made in said temporary bond to the provision of this Section.
[The bonds of the Series due are not redeemable prior to maturity
for any reason and are not subject to a sinking fund.]
SECTION 2.03. The registered owner of any bond or bonds of the Series due
, at his option may surrender the same with other bonds of said series
at the office of the Trustee in Chicago, Illinois, or at the agency of the
Company in the Borough of Manhattan, City and State of New York, or elsewhere if
authorized by
<PAGE>
9
the Company, for cancellation, in exchange for other bonds of the said series of
higher or lower authorized denominations, but of the same aggregate principal
amount, bearing interest from its date, and upon receipt of any payment required
under the provisions of Section 2.04 hereof. Thereupon the Company shall execute
and deliver to the Trustee and the Trustee shall authenticate and deliver such
other registered bonds to such registered owner at its office or at any other
place specified as aforesaid.
[Notwithstanding the provisions of Section 11 of Article II of the 1937
Indenture, the Company shall not be required to issue, transfer or exchange any
bond of the Series due , during a period of ten (10) days next
preceding any selection of bonds of the Series due , to be redeemed.
The Company shall not be required to transfer or exchange any bond of the Series
due , called or being called for redemption in its entirety or to
transfer or exchange the called portion of a bond of the Series due ,
which has been called for partial redemption.]
SECTION 2.04. No charge shall be made by the Company for any exchange or
transfer of bonds of the Series due , other than for taxes or other
governmental charges, if any, that may be imposed in relation thereto.
SECTION 2.05. The bonds of the Series due , shall be executed on
behalf of the Company by the manual signature of its President or one of its
Vice Presidents or with the facsimile signature of its President, and its
corporate seal shall be thereunto affixed, or printed, lithographed, or engraved
thereon, in facsimile, and attested by the manual signature of its Secretary or
one of its Assistant Secretaries or with the facsimile signature of its
Secretary. In case any of the officers who shall have signed any bonds or
attested the seal thereon or whose facsimile signature shall be borne by the
bonds shall cease to be such officers of the Company before the bonds so signed
and sealed actually shall have been authenticated by the Trustee or delivered by
the Company, such bonds nevertheless may be issued, authenticated, and delivered
with the same force and effect as though the person or persons who signed such
bonds and attested the seal thereon or whose facsimile signature is borne by the
bonds had not ceased to be such officer or officers of the Company. Any bond
issuable hereunder may be signed or attested by manual or facsimile signature in
behalf of the Company by such person as at the actual date of the execution of
such bond shall be the proper officer of the Company, although at the date of
such bond such person shall not have been an officer of the Company.
SECTION 2.06. (a) Except as provided in subsections (c) and (g) below, the
registered holder of all of the bonds of the Series due shall be The
Depository Trust Company ("DTC") and the bonds of the Series due ,
shall be registered in the name of Cede & Co., as nominee for DTC. Payment of
principal of[, premium, if any,] and interest on any bonds of the Series due
registered in the name of Cede & Co. shall be made by transfer of New
York Federal or equivalent immediately available funds with respect to the bonds
of the Series due to the account of Cede & Co. on each such payment
date for the bonds of the Series due at the address indicated for Cede
& Co. in the bond register kept by the Trustee.
(b) The bonds of the Series due shall be initially issued in the
form of a separate single authenticated fully registered certificate in the
aggregate principal amount of the bonds of the Series due . Upon
initial issuance, the ownership of such bonds of the Series due shall
be registered in the bond register kept by the Trustee in the name of Cede &
Co., as nominee of DTC. The Trustee and the Company may treat DTC (or its
nominee) as the sole and exclusive registered holder of the bonds of the Series
due registered in its name for the purposes of payment of the
principal of[, premium, if any,] and interest on the bonds of the Series due
, and of giving any notice permitted or required to be given to
holders under the Indenture, except as provided in Section 2.06(g) below; and
neither the Trustee nor the Company shall be affected by any notice to the
contrary. Neither the Trustee nor the Company shall have any responsibility or
obligation to any of DTC's participants (each a "Participant"), any person
claiming a beneficial ownership in the bonds of the Series due , under
or through DTC or any Participant (each a "Beneficial Owner"), or any other
person which is not shown on the bond register maintained by the Trustee as
being a registered holder, with respect to the accuracy of any records
maintained by DTC or any Participant; the payment of DTC or any Participant of
any amount in respect of the principal of [, premium, if any,] or interest on
<PAGE>
10
the bonds of the Series due ; any notice which is permitted or
required to be given to registered holders under the Indenture of bonds of the
Series due ; or any consent given or other action taken by DTC as
bondholder. The Trustee shall pay all principal of [, premium, if any,] and
interest on the bonds of the Series due registered in the name of Cede
& Co. only to or "upon the order of" DTC (as that term is used in the Uniform
Commercial Code as adopted in Minnesota and New York), and all such payments
shall be valid and effective to fully satisfy and discharge the Company's
obligations with respect to the principal of [, premium, if any,] and interest
on such bonds of the Series due to the extent of the sum or sums so
paid. Except as otherwise provided in Sections 2.06(c) and (g) below, no person
other than DTC shall receive authenticated bond certificates evidencing the
obligation of the Company to make payments of principal of and interest on the
bonds of the Series due . Upon delivery by DTC to the Trustee of
written notice to the effect that DTC has determined to substitute a new nominee
in place of Cede & Co., and subject to the provisions of the Indenture with
respect to transfers of bonds, the word "Cede & Co." in this Supplemental Trust
Indenture shall refer to such new nominee of DTC.
(c) If the Company in its discretion determines that it is in the best
interest of the Beneficial Owners that they be able to obtain bond certificates,
the Company may notify DTC and the Trustee, whereupon DTC will notify the
Participants of the availability through DTC of bond certificates. In such
event, the Trustee shall issue, transfer and exchange bond certificate as
requested by DTC in appropriate amounts pursuant to Article II of the 1937
Indenture prior to the Effective Date, Article II of the Restated Indenture on
and after the Effective Date and Section 2.03 of this Supplemental Trust
Indenture. The Company shall pay all costs in connection with the production of
bond certificates if the Company makes such a determination under this Section
2.06(c). DTC may determine to discontinue providing its services with respect to
the bonds of the Series due at any time by giving written notice to
the Company and the Trustee and discharging its responsibilities with respect
thereto under applicable law. Under such circumstances (if there is no successor
book-entry depository), the Company and the Trustee shall be obligated (at the
sole cost and expense of the Company) to deliver bond certificates as described
in this Supplemental Trust Indenture. If bond certificates are issued, the
provisions of the Indenture shall apply to, among other things, the transfer and
exchange of such certificates and the method of payment and principal of [,
premium, if any,] and interest on such certificates. Whenever DTC requests the
Company and the Trustee to do so, the Company will direct the Trustee (at the
sole cost and expense of the Company) to cooperate with DTC in taking
appropriate action after reasonable notice (1) to make available one or more
separate certificates evidencing the bonds of the Series due to any
Participant or (2) to arrange for another book-entry depository to maintain
custody of certificates evidencing the bonds of the Series due
registered in the name of Cede & Co. Any successor book-entry depository must be
a clearing agency registered with the Securities and Exchange Commission
pursuant to Section 17A of the Securities Exchange Act of 1934 and must enter
into an agreement with the Company and the Trustee agreeing to act as the
depository and clearing agency for the bonds of the Series due (except
as provided in Section 2.06(g) below). After such agreement has become
effective, DTC shall present the bonds of the Series due for
registration of transfer in accordance with Section 12 of Article II of the 1937
Indenture prior to the Effective Date and Section 2.12 of the Restated Indenture
on and after the Effective Date, and the Trustee shall register them in the name
of the successor book-entry depository or its nominee. If a successor book-entry
depository has not accepted such position before the effective date of DTC's
termination of its services, the book-entry system shall automatically terminate
and may not be reinstated without the consent of all registered holders of the
bonds of the Series due .
(d) Notwithstanding any other provision of this Supplemental Trust Indenture
to the contrary, so long as any bonds of the Series due are registered
in the name of Cede & Co., as nominee of DTC, all payments with respect to the
principal of [, premium, if any,] and interest on such Bonds of the Series due
and all notices with respect to such bonds of the Series due
shall be made and given, respectively, to DTC as provided in the
representation letter dated as of the date of delivery of the bonds of the
Series due among DTC, the Company and the Trustee. The Trustee is
hereby authorized and directed to comply with all terms of the representation
letter.
<PAGE>
11
(e) In connection with any notice or other communication to be provided
pursuant to the Indenture for the bonds of the Series due by the
Company or the Trustee with respect to any consent or other action to be taken
by the registered holders of the bonds of the Series due , the Company
or the Trustee, as the case may be, shall seek to establish a record date to the
extent permitted by the Indenture for such consent or other action and give DTC
notice of such record date not less than fifteen (15) calendar days in advance
of such record date to the extent possible. Such notice to DTC shall be given
only when DTC is the sole registered holder.
(f) NEITHER THE COMPANY NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR
OBLIGATIONS TO THE PARTICIPANTS OR THE BENEFICIAL OWNERS WITH RESPECT TO (1) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY PARTICIPANT; (2) THE PAYMENT BY
DTC OR ANY PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF
THE PRINCIPAL OF [, PREMIUM, IF ANY,] OR INTEREST ON THE BONDS OF THE SERIES DUE
; (3) THE DELIVERY BY DTC OR ANY PARTICIPANT OF ANY NOTICE TO ANY
BENEFICIAL OWNER WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE
TO BE GIVEN TO REGISTERED HOLDERS; (4) THE SELECTION OF THE BENEFICIAL OWNERS TO
RECEIVE PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS OF THE
SERIES DUE ; OR (5) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS
A REGISTERED HOLDER.
SO LONG AS CEDE & CO. IS THE REGISTERED HOLDER OF THE BONDS OF THE SERIES
DUE AS NOMINEE OF DTC, REFERENCES HEREIN TO REGISTERED HOLDERS OF THE
BONDS OF THE SERIES DUE SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE
BENEFICIAL OWNERS OF THE BONDS OF THE SERIES DUE NOR DTC
PARTICIPANTS.
(g) The Company, in its sole discretion, may terminate the services of DTC
with respect to the bonds of the Series due if the Company determines
that: (i) DTC is unable to discharge its responsibilities with respect to the
bonds of the Series due ; or (ii) a continuation of the requirement
that all of the outstanding bonds of the Series due be registered with
the registration books kept by the Trustee in the name of Cede & Co., as nominee
of DTC, is not in the best interest of the Beneficial Owners of the bonds of the
Series due . After such event and if no substitute book-entry
depository is appointed by the Company, bond certificates will be delivered as
described in the Indenture.
(h) Upon the termination of the services of DTC with respect to the bonds of
the Series due pursuant to subsections (c) or (g) of this Section 2.06
after which no substitute book-entry depository is appointed, the bonds of the
Series due shall be registered in whatever name or names holders
transferring or exchanging bonds of the Series due shall designate in
accordance with the provisions of the Indenture.
ARTICLE III.
SINKING FUND.
SECTION 3.01. (a) The Company covenants that it will on the first day of
October of each year commencing October 1, , and continuing so long as any of
the bonds of the Series due , are outstanding, pay or cause to be paid
to the Trustee, for and as a fund for the use and benefit of the holders of
bonds of the Series due , a sum in lawful money of the United States
of America equal to the amount required to redeem on the first day of December
next following the date of such payment, in accordance with Section 3.02, 1% of
the highest aggregate principal amount of bonds of that series at any time
outstanding. Such fund shall be the Sinking Fund for bonds of the Series due
. [The Company covenants that it will meet its obligations under the
immediately preceding sentence for the year 199 solely and entirely through the
application of permanent additions (or, if after the Effective Date, through the
application of an Amount of Established Permanent Additions) in the manner
hereinafter set forth in subdivision (c) of this Section 3.01.]
<PAGE>
12
(b) The delivery by the Company to the Trustee of bonds of the Series due
, shall, for the purposes of satisfying the Sinking Fund for bonds of
that series, be deemed equivalent under this Section to the payment of cash
equal to the amount required to effect the redemption of the bonds so delivered
on the first day of December next following such delivery. If any bonds of the
Series due , have been redeemed or retired and no bonds have
theretofore been issued, cash withdrawn, or credit taken under any of the
provisions of the Indenture on account of the redemption or retirement of such
bonds, the Company may deduct from any payment for the Sinking Fund for bonds of
the Series due , an amount equivalent to the amount required to effect
the redemption of a like amount of bonds of that series for the Sinking Fund for
bonds of the Series due , on the first day of December next following,
provided that the Company thereafter shall not issue any bonds, withdraw any
cash, or take any credit under any of the provisions of the Indenture on account
of the redemption or retirement of such bonds and such bonds shall be cancelled.
For the purpose of this subdivision (b), credit shall be deemed to have been
taken for any bonds redeemed or retired if used as a reduction of the amount of
cash required to be deposited with the Trustee under any provision of the
Indenture or out of funds pledged with the Trustee under any provision of the
Indenture, other than funds deposited with the Trustee for the payment of bonds
upon maturity or upon redemption at the option of the Company.
(c) Prior to the Effective Date, the delivery by the Company to the Trustee
of a written application of the Company, signed by its President or a Vice
President, to apply permanent additions acquired or constructed by the Company
(which, under the provisions of Article V of the 1937 Indenture, as amended by
the Supplemental Trust Indenture thereto dated February 1, 1944, might otherwise
be made the basis for the issuance of the bonds thereunder) to the Sinking Fund
provided for bonds of the Series due for the purpose of such Sinking
Fund shall be deemed equivalent under this Section to the payment of cash equal
to the amount required to effect the redemption on the first day of December
next following, of bonds of the Series due , in an amount equal to
66 2/3% of the cost or fair value, whichever is less, of the permanent additions
so applied, after making the deductions provided for in Section 3 of Article V
of the 1937 Indenture to a date not more than 90 days preceding the date of the
delivery to the Trustee of such application, on account of property removed from
service or abandoned and not replaced or offset; provided that the Company
thereafter shall not issue any bonds, withdraw any cash, or take any credit
under any of the provisions of the Indenture upon the basis of the permanent
additions so applied. Prior to the Effective Date, such an application in each
case shall be accompanied by the resolutions, certificates, opinions,
instruments, and other papers provided for in Subsection (B) of Section 10 of
Article XI of the 1937 Indenture, as amended by the Supplemental Trust Indenture
thereto dated February 1, 1944, in case of withdrawal of cash from the Release
Fund with such omissions or variations therefrom or insertions therein as may be
appropriate in the light of the purpose for which they are used. On and after
the Effective Date, the delivery by the Company to the Trustee of a written
application of the Company signed by its President or a Vice President, to apply
an Amount of Established Permanent Additions established as provided in Sections
5.05 and 5.06 of the Indenture (which has not been applied previously to any
other purpose specified in the Indenture) to the Sinking Fund provided for in
this Article III, for purposes of said Sinking Fund shall be deemed equivalent
under this Section to the payment of cash equal to the amount required to effect
the redemption on the first day of December next following, of a principal
amount of Bonds of this Series equal to 66 2/3% of the Amount of Established
Permanent Additions so applied.
SECTION 3.02. (a) As soon as may be, after each payment to the Sinking Fund
provided for bonds of the Series due , is so made, the Trustee shall
apply the moneys in such Sinking Fund to the purchase of bonds of the Series due
, in the open market, at the lowest price or prices obtainable, but
not to exceed the price at which the bonds of such series are then redeemable
for the Sinking Fund as herein provided. If within 20 days after each payment to
the Sinking Fund, the Trustee shall be unable to purchase bonds of the Series
due , as aforesaid, sufficient to reduce the amount of money held in
the Sinking Fund to less than $10,000, the Trustee shall apply the Sinking Fund
for bonds of the Series due , or the balance thereof to the
redemption, on the first day of December next following the receipt of such cash
by the Trustee, of bonds of such series at the sinking fund redemption prices
provided for in Section 2.02 of this Supplemental Trust Indenture.
<PAGE>
13
(b) The particular bonds to be redeemed for the Sinking Fund shall be
selected by the Trustee by lot, in such manner as it shall deem proper in its
discretion, from the distinctive numbers borne by or assigned to registered
bonds of the Series due , as herein provided. For each registered bond
of a denomination in excess of $1,000, the Trustee shall assign a distinctive
number of each $1,000 of the principal amount thereof. Registered bonds shall be
deemed to have been drawn by lot if and to the extent that the numbers borne by
or assigned thereto as above provided are selected as aforesaid. The Trustee
shall notify the Company in writing of the distinctive numbers of the bonds of
the Series due , to be redeemed for the Sinking Fund. The Trustee is
authorized and empowered hereby to give or cause to be given on behalf of the
Company the notice required by Section 2.02 hereof in order to redeem bonds for
Sinking Fund purposes.
(c) On and after the commencement of notice of redemption of bonds pursuant
to this Section, the Trustee shall (subject to the provisions of Section 5 of
Article XX of the 1937 Indenture prior to the Effective Date and to the
provisions of Section 20.03 of the Indenture on and after the Effective Date)
hold the moneys necessary to redeem the bonds so to be redeemed as a separate
trust fund for the account of the respective holders thereof and such moneys
shall be paid to them respectively upon presentation and surrender of such
bonds; and after the redemption date, such bonds shall cease to be entitled to
the lien, benefits, or security of the Indenture, and as respects the Company's
liability thereon such bonds and all claims for interest thereon shall be deemed
to have been paid; this Section being in all respects subject to the provisions
of Section 5 of Article XX of the 1937 Indenture prior to the Effective Date and
to the provisions of Section 20.03 of the Indenture on and after the Effective
Date, except that, on and after commencement of notice of redemption of bonds
pursuant to this Section 3.02, such bonds shall be deemed to have been redeemed
from the holder or holders thereof and paid for the purpose of release and
satisfaction of the Indenture.
(d) If there shall be drawn for redemption a portion of the principal
amount less than the entire amount of any registered bond, the Company shall
execute and the Trustee shall authenticate and deliver without charge to the
holder thereof registered bonds of the Series due , for the unredeemed
balance of such registered bond.
SECTION 3.03. All bonds delivered to the Trustee in lieu of cash, or
purchased by the Trustee, or redeemed by operation of the Sinking Fund in
accordance with the provisions of this Article, shall be cancelled by the
Trustee. Bonds so cancelled shall not be reissued and no additional bonds shall
be authenticated and delivered in substitution therefor or on account of the
retirement thereof and no credit shall be taken or cash withdrawn under the
provisions of the Indenture on the basis thereof.
ARTICLE IV.
APPOINTMENT OF AUTHENTICATING AGENT.
SECTION 4.01. The Trustee shall, if requested in writing so to do by the
Company, promptly appoint an agent or agents of the Trustee who shall have
authority to authenticate registered bonds of the Series due , in the
name and on behalf of the Trustee. Such appointment by the Trustee shall be
evidenced by a certificate of a vice-president of the Trustee delivered to the
Company prior to the effectiveness of such appointment.
SECTION 4.02. (a) Any such authenticating agent shall be acceptable to the
Company and at all times shall be a corporation which is organized and doing
business under the laws of the United States or of any State, is authorized
under such laws to act as authenticating agent, has a combined capital and
surplus of at least $10,000,000, and is subject to supervision or examination by
Federal or State authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 4.02
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.
(b) Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which any
<PAGE>
14
authenticating agent shall be a party, or any corporation succeeding to the
corporate agency business of any authenticating agent, shall continue to be the
authenticating agent without the execution or filing of any paper or any further
act on the part of the Trustee or the authenticating agent.
(c) Any authenticating agent at any time may resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time, and upon written request of the Company to the Trustee shall, terminate
the agency of any authenticating agent by giving written notice of termination
to such authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 4.02, the Trustee, unless otherwise requested in
writing by the Company, promptly shall appoint a successor authenticating agent,
which shall be acceptable to the Company. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties, and responsibilities of its predecessor hereunder, with
like effect as if originally named. No successor authenticating agent shall be
appointed unless eligible under the provisions of this Section 4.02.
(d) The Trustee agrees to pay to any authenticating agent, appointed in
accordance with the provisions of this Section 4.02, reasonable compensation for
its services, and the Trustee shall be entitled to be reimbursed for such
payments.
SECTION 4.03. If an appointment is made pursuant to this Article IV, the
registered bonds of the Series due , shall have endorsed thereon, in
addition to the Trustee's Certificate, an alternate Trustee's Certificate in the
following form:
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee,
By
Authenticating Agent,
By
Authorized Officer.
SECTION 4.04. No provision of this Article IV shall require the Trustee to
have at any time more than one such authenticating agent for any one State or to
appoint any such authenticating agent in the State in which the Trustee has its
principal place of business.
<PAGE>
15
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE.
SECTION 5.01. The name and address of the debtor and secured party are set
forth below:
Debtor: Northern States Power Company
414 Nicollet Mall
Minneapolis, Minnesota 55401
Secured Party: Harris Trust and Savings Bank, Trustee
111 West Monroe Street
Chicago, Illinois 60603
NOTE: Northern States Power Company, the debtor above named, is "a
transmitting utility" under the Uniform Commercial Code as adopted in Minnesota,
North Dakota and South Dakota.
SECTION 5.02. Reference to Article I hereof is made for a description of the
property of the debtor covered by this Financing Statement with the same force
and effect as if incorporated in this Section at length.
SECTION 5.03. The maturity dates and respective principal amounts of
obligations of the debtor secured and presently to be secured by the Indenture,
reference to all of which for the terms and conditions thereof is hereby made
with the same force and effect as if incorporated herein at length, are as
follows.
<TABLE>
<CAPTION>
FIRST MORTGAGE BONDS PRINCIPAL AMOUNT
- ---------------------------------------------------------------------------- ----------------
<S> <C>
Series due October 1, 1997.................................................. $ 100,000,000
Series due February 1, 1999................................................. $ 200,000,000
Series due October 1, 2001.................................................. $ 150,000,000
Series due December 1, 2000................................................. $ 100,000,000
Series due March 1, 2002.................................................... $ 50,000,000
Series due February 1, 2003................................................. $ 50,000,000
Series due April 1, 2003.................................................... $ 80,000,000
Series due December 1, 2005................................................. $ 70,000,000
Pollution Control Series C.................................................. $ 8,800,000
Resource Recovery Series I.................................................. $ 22,300,000
Pollution Control Series J.................................................. $ 5,450,000
Pollution Control Series K.................................................. $ 3,400,000
Pollution Control Series L.................................................. $ 4,850,000
Series due July 1, 2025..................................................... $ 250,000,000
</TABLE>
SECTION 5.04. This financing Statement is hereby adopted for all of the
First Mortgage Bonds of the series mentioned above secured by said Indenture.
SECTION 5.05. The 1937 Indenture and the prior Supplemental Trust
Indentures, as set forth below, have been filed or recorded in each and every
office in the States of Minnesota, North Dakota, and South Dakota designated by
law for the filing or recording thereof in respect of all property of the
Company subject thereto:
Original Indenture
Dated February 1, 1937
Supplemental Indenture
Dated June 1, 1942
Supplemental Indenture
Dated February 1, 1944
Supplemental Indenture
Dated October 1, 1945
Supplemental Indenture
Dated July 1, 1948
Supplemental Indenture
Dated August 1, 1949
Supplemental Indenture
Dated June 1, 1952
Supplemental Indenture
Dated October 1, 1954
<PAGE>
16
Supplemental Indenture
Dated September 1, 1956
Supplemental Indenture
Dated August 1, 1957
Supplemental Indenture
Dated July 1, 1958
Supplemental Indenture
Dated December 1, 1960
Supplemental Indenture
Dated August 1, 1961
Supplemental Indenture
Dated June 1, 1962
Supplemental Indenture
Dated September 1, 1963
Supplemental Indenture
Dated August 1, 1966
Supplemental Indenture
Dated June 1, 1967
Supplemental Indenture
Dated October 1, 1967
Supplemental Indenture
Dated May 1, 1968
Supplemental Indenture
Dated October 1, 1969
Supplemental Indenture
Dated February 1, 1971
Supplemental Indenture
Dated May 1, 1971
Supplemental Indenture
Dated February 1, 1972
Supplemental Indenture
Dated January 1, 1973
Supplemental Indenture
Dated January 1, 1974
Supplemental Indenture
Dated September 1, 1974
Supplemental Indenture
Dated April 1, 1975
Supplemental Indenture
Dated May 1, 1975
Supplemental Indenture
Dated March 1, 1976
Supplemental Indenture
Dated June 1, 1981
Supplemental Indenture
Dated December 1, 1981
Supplemental Indenture
Dated May 1, 1983
Supplemental Indenture
Dated December 1, 1983
Supplemental Indenture
Dated September 1, 1984
Supplemental Indenture
Dated December 1, 1984
Supplemental Indenture
Dated May 1, 1985
Supplemental Indenture
Dated September 1, 1985
Supplemental and Restated Indenture
Dated May 1, 1988
Supplemental Indenture
Dated July 1, 1989
Supplemental Indenture
Dated June 1, 1990
Supplemental Indenture
Dated October 1, 1992
Supplemental Indenture
Dated April 1, 1993
Supplemental Indenture
Dated December 1, 1993
Supplemental Indenture
Dated February 1, 1994
Supplemental Indenture
Dated October 1, 1994
Supplemental Indenture
Dated June 1, 1995
SECTION 5.06. The property covered by this Financing Statement also shall
secure additional series of First Mortgage Bonds of the debtor which may be
issued from time to time in the future in accordance with the provisions of the
Indenture.
<PAGE>
17
ARTICLE VI.
AMENDMENTS TO INDENTURE.
SECTION 6.01. Each holder or registered owner of a bond of any series
originally authenticated by the Trustee and originally issued by the Company
subsequent to May 1, 1985 and of any coupon pertaining to any such bond, by the
acquisition, holding or ownership of such bond and coupon, thereby consents and
agrees to, and shall be bound by, the provisions of Article VI of the
Supplemental Indenture dated May 1, 1985. Each holder or registered owner of a
bond of any series (including bonds of the Series due ) originally
authenticated by the Trustee and originally issued by the Company subsequent to
May 1, 1988 and of any coupon pertaining to such bond, by the acquisition,
holding or ownership of such bond and coupon, thereby consents and agrees to,
and shall be bound by, the provisions of the Supplemental and Restated Trust
Indenture dated May 1, 1988 upon the Effective Date.
ARTICLE VII.
MISCELLANEOUS.
SECTION 7.01. The recitals of fact herein, except the recital that the
Trustee has duly determined to execute this Supplemental Trust Indenture and be
bound, insofar as it may lawfully so do, by the provisions hereof and in the
bonds shall be taken as statements of the Company and shall not be construed as
made by the Trustee. The Trustee makes no representations as to value of any of
the property subjected to the lien of the Indenture, or any part thereof, or as
to the title of the Company thereto, or as to the security afforded thereby and
hereby, or as to the validity of this Supplemental Trust Indenture or of the
bonds issued under the Indenture by virtue hereof (except the Trustee's
certificate), and the Trustee shall incur no responsibility in respect of such
matters.
SECTION 7.02. This Supplemental Trust Indenture shall be construed in
connection with and as a part of the 1937 Indenture, as supplemented by the
Supplemental Trust Indentures dated June 1, 1942, February 1, 1944, October 1,
1945, July 1, 1948, August 1, 1949, June 1, 1952, October 1, 1954, September 1,
1956, August 1, 1957, July 1, 1958, December 1, 1960, August 1, 1961, June 1,
1962, September 1, 1963, August 1, 1966, June 1, 1967, October 1, 1967, May 1,
1968, October 1, 1969, February 1, 1971, May 1, 1971, February 1, 1972, January
1, 1973, January 1, 1974, September 1, 1974, April 1, 1975, May 1, 1975, March
1, 1976, June 1, 1981, December 1, 1981, May 1, 1983, December 1, 1983,
September 1, 1984, December 1, 1984, May 1, 1985, September 1, 1985, the
Supplemental and Restated Trust Indenture dated May 1, 1988 and the Supplemental
Trust Indentures dated July 1, 1989, June 1, 1990, October 1, 1992, April 1,
1993, December 1, 1993, February 1, 1994, October 1, 1994, June 1, 1995 and
.
SECTION 7.03. (a) If any provision of this Supplemental Trust Indenture
limits, qualifies, or conflicts with another provision of the Indenture required
to be included in indentures qualified under the Trust Indenture Act of 1939 (as
enacted prior to the date of this Supplemental Trust Indenture) by any of the
provisions of Sections 310 to 317, inclusive, of the said Act, such required
provisions shall control.
(b) In case any one or more of the provisions contained in this Supplemental
Trust Indenture or in the bonds issued hereunder should be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected, impaired, prejudiced, or disturbed thereby.
SECTION 7.04. Wherever in this Supplemental Trust Indenture the word
"Indenture" is used without the prefix, "1937," "Original" or "Supplemental",
such word was used intentionally to include in its meaning both the 1937
Indenture and all indentures supplemental thereto.
SECTION 7.05. Wherever in this Supplemental Trust Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Trust Indenture contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
<PAGE>
18
SECTION 7.06. (a) This Supplemental Trust Indenture may be executed
simultaneously in several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(b) The Table of Contents and the descriptive headings of the several
Articles of this Supplemental Trust Indenture were formulated, used, and
inserted in this Supplemental Trust Indenture for convenience only and shall not
be deemed to affect the meaning or construction of any of the provisions hereof.
--------------
The amount of obligations to be issued forthwith under the Indenture is
$ .
--------------
<PAGE>
19
IN WITNESS WHEREOF, on this th day of , A.D. , NORTHERN STATES POWER
COMPANY, a Minnesota corporation, party of the first part, has caused its
corporate name and seal to be hereunto affixed, and this Supplemental Trust
Indenture dated , to be signed by its President or a Vice President,
and attested by its Secretary or an Assistant Secretary, for and in its behalf,
and HARRIS TRUST AND SAVINGS BANK, an Illinois corporation, as Trustee, party of
the second part, to evidence its acceptance of the trust hereby created, has
caused its corporate name and seal to be hereunto affixed, and this Supplemental
Trust Indenture dated , to be signed by its President, a Vice
President, or an Assistant Vice President, and attested by its Secretary or an
Assistant Secretary, for and in its behalf.
<TABLE>
<S> <C>
NORTHERN STATES POWER COMPANY,
BY , VICE
PRESIDENT
Attest:
, SECRETARY.
Executed by Northern States
Power Company in presence of:
(CORPORATE SEAL)
, WITNESSES.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
BY , VICE PRESIDENT
Attest:
, ASSISTANT SECRETARY.
Executed by Harris Trust and Savings
Bank in presence of:
(CORPORATE SEAL)
, WITNESSES.
</TABLE>
<PAGE>
20
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
On this th day of , A.D. , before me, , a
Notary Public in and for said County in the State aforesaid, personally appeared
and , to me personally known, and to me
known to be Vice President and Secretary, respectively, of Northern States Power
Company, one of the corporations described in and which executed the within and
foregoing instrument, and who, being by me severally duly sworn, each did say
that he, the said is Vice President, and he, the said
, is Secretary, of said Northern States Power Company, a
corporation; that the seal affixed to the within and foregoing instrument is the
corporate seal of said corporation, and that said instrument was executed in
behalf of said corporation by authority of its board of directors; and said
and each acknowledged said instrument to
be the free act and deed of said corporation and that such corporation executed
the same.
WITNESS my hand and notarial seal this th day of , A.D. .
NOTARY PUBLIC, HENNEPIN COUNTY, MINN.
MY COMMISSION EXPIRES
(NOTARIAL SEAL)
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
and , being severally duly sworn,
each deposes and says that he, the said , is Vice
President, and he, the said , is Secretary, of Northern States
Power Company, the corporation described in and which executed the within and
foregoing Supplemental Trust Indenture, as mortgagor; and each for himself
further says that said Supplemental Trust Indenture was executed in good faith,
and not for the purpose of hindering, delaying, or defrauding any creditor of
the said mortgagor.
Subscribed and sworn to before me this th day of , A.D. .
NOTARY PUBLIC, HENNEPIN COUNTY, MINN.
MY COMMISSION EXPIRES
(NOTARIAL SEAL)
<PAGE>
21
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK ss.:
</TABLE>
On this th day of , A.D. , before me, , a Notary
Public in and for said County in the State aforesaid, personally appeared
and , to me personally known, and to me known to be Vice
President and Assistant Secretary, respectively, of Harris Trust and Savings
Bank, one of the corporations described in and which executed the within and
foregoing instrument, and who, being by me severally duly sworn, each did say
that she, the said , is Vice President, and she, the said
, is Assistant Secretary, of said Harris Trust and Savings Bank, a
corporation; that the seal affixed to the within and foregoing instrument is the
corporate seal of said corporation, and that said instrument was executed in
behalf of said corporation by authority of its board of directors; and said
, and each acknowledged said instrument to be the free act
and deed of said corporation and that such corporation executed the same.
WITNESS my hand and notarial seal this th day of , A.D. .
NOTARY PUBLIC, COOK COUNTY, ILLINOIS.
MY COMMISSION EXPIRES
(NOTARIAL SEAL)
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK ss.:
</TABLE>
and , being severally duly sworn, each for herself
deposes and says that she, the said , is Vice President, and she,
the said , is Assistant Secretary, of Harris Trust and Savings Bank,
the corporation described in and which executed the within and foregoing
Supplemental Trust Indenture, as mortgagor; and each for herself further says
that said Supplemental Trust Indenture was executed in good faith, and not for
the purpose of hindering, delaying, or defrauding any creditor of the mortgagor.
Subscribed and sworn to before me this th day of , A.D. .
NOTARY PUBLIC, COOK COUNTY, ILLINOIS.
MY COMMISSION EXPIRES
(NOTARIAL SEAL)
<PAGE>
A-1
SCHEDULE A
The property referred to in Article I of the foregoing Supplemental Trust
Indenture from Northern States Power Company to Harris Trust and Savings Bank,
Trustee, made as of , includes the following property hereinafter more
specifically described. Such description, however, is not intended to limit or
impair the scope or intention of the general description contained in the
granting clauses or elsewhere in the Original Indenture.
I. PROPERTY IN THE STATE OF MINNESOTA
<PAGE>
A-2
--------------
MORTGAGOR'S RECEIPT FOR COPY.
The undersigned Northern States Power Company, the Mortgagor described in
the foregoing Mortgage, hereby acknowledges that at the time of the execution of
the Mortgage, Harris Trust and Savings Bank, Trustee, the Mortgagee described
therein, surrendered to it a full, true, complete, and correct copy of said
instrument, with signatures, witnesses, and acknowledgments thereon shown.
NORTHERN STATES POWER COMPANY.
BY , VICE
PRESIDENT
Attest:
, SECRETARY
--------------
This instrument was drafted by Northern States Power Company, 414 Nicollet
Mall, Minneapolis, Minnesota 55401.
Tax statements for the real property described in this instrument should be
sent to Northern States Power Company, 414 Nicollet Mall, Minneapolis, Minnesota
55401.
October 6, 1995
Securities and Exchange Commission
450 Fifth Street NW
Washington, DC 20549
Re: $300,000,000 principal amount of
First Mortgage Bonds of Northern
States Power Company, a Minnesota
corporation
Gentlemen:
I am participating in the proceedings incident to the issuance
and sale by Northern States Power Company, a Minnesota
corporation (the Company) of up to $300,000,000 principal amount
of First Mortgage Bonds, (the New Bonds). I have examined all
statutes, records, instruments, and documents which I have
deemed necessary to examine for the purposes of this opinion.
Based upon the foregoing and upon my general familiarity with
the Company and its affairs, I am of the opinion that:
1. The Company was incorporated and is now a legal
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 Registration Statement, Form
S-3, to which this opinion is an exhibit; and has
corporate power, right, and authority to create,
issue, and sell the New Bonds.
2. When and if (a) the above mentioned Registration
Statement has become effective pursuant to the
provisions of the Securities Act of 1933, as amended;
(b) the Minnesota Public Utilities Commission has
issued its order approving Capital Structure which
permits the Company to issue the New Bonds; (c) the
Supplemental Trust Indenture relating to the New Bonds
from the Company to Harris Trust and Savings Bank,
Trustee, has been duly authorized, executed,
delivered, filed and recorded as required by law; and
(d) the New Bonds have been duly authorized, executed,
authenticated, and delivered and the consideration for
the New Bonds has been received by the Company, all in
the manner contemplated by the said Registration
Statement, the New Bonds will be legally issued and
binding obligations of the Company and entitled to the
benefits and security of the Company's Trust
Indenture, dated February 1, 1937, as supplemented.
3. The statements made in the above mentioned
Registration Statement and related Prospectus,
purporting to be made or based upon the opinion of
counsel, correctly set forth my opinion upon said
matters.
Respectfully submitted,
(Gary R. Johnson)
Gary R. Johnson
Vice President and General Counsel
Exhibit 12.01
NORTHERN STATES POWER COMPANY AND SUBSIDIARY COMPANIES
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
12 Months
Ended
6/30/95 1994 1993 1992 1991 1990
(Thousands of dollars)
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing
operations before accounting
change $252,874 $243,475 $211,740 $160,928 $207,012 $192,971
Add
Taxes based on income (1)
Federal income taxes 114,327 114,484 99,952 71,549 75,905 120,686
State income taxes 36,780 34,805 28,076 19,148 22,209 34,442
Deferred income taxes-net 563 (2,262) 12,256 5,185 26,506 (31,794)
Tax credit adjustment - net (14,614) (13,979) (9,544) (9,708) (9,189) (10,048)
Foreign income taxes 389 219
Fixed charges 129,194 115,083 113,562 109,888 110,146 111,826
Deduct
Undistributed equity in earnings of
unconsolidated investees 29,066 27,427 1,142 1,006 0 1,876
Earnings $490,447 $464,398 $454,900 $355,984 $432,589 $416,207
Fixed charges
Interest charges per
statement of income $129,194 $115,083 $113,562 $109,888 $110,146 $111,826
Ratio of earnings to fixed
charges 3.8 4.0 4.0 3.2 3.9 3.7
(1) Includes income taxes included in Other Income (Expense) - Net.
</TABLE>
Exhibit 12.02
NEW NSP
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
12 Months
Ended
6/30/95 1994 1993 1992
(Thousands of dollars)
<S> <C> <C> <C> <C>
Earnings
Income from continuing
operations before accounting
change $169,248 $173,022 $171,904 $127,564
Add
Taxes based on income (1) 103,465 108,422 107,743 67,503
Fixed charges 99,028 87,164 92,169 91,674
Earnings $371,741 $368,608 $371,816 $286,741
Fixed charges
Interest charges per
statement of income $99,028 $87,164 $92,169 $91,674
Ratio of earnings to fixed
charges 3.8 4.2 4.0 3.1
(1) Includes income taxes included in Other Income (Expense) - Net.
</TABLE>
Exhibit 23.01
Independent Auditor's Consent
We consent to the incorporation by reference in this Registration Statement of
Northern States Power Company (the Company) on Form S-3 (relating to the
Northern States Power Company registration of $300,000,000 First Mortgage
Bonds) of our report dated February 8, 1995 (which expresses an unqualified
opinion and includes an explanatory paragraph referring to the Company's
change in method of accounting for postretirement health care costs in 1993),
appearing on page 44 in Item 8 of the Annual Report on Form 10-K of Northern
States Power Company for the year ended December 31, 1994 and to the
reference to us under the heading "Experts" in the Prospectus, which is part
of this Registration Statement.
(Deloitte & Touche LLP)
Deloitte & Touche LLP
Minneapolis, Minnesota
October 6, 1995
Exhibit 23.02
Legal Counsel's Consent
I do hereby consent to the use of my name in the within
Registration Statement and the accompanying Prospectus of
Northern States Power Company, a Minnesota corporation, and to
the use of my opinion, filed as Exhibit 5.01 to the Registration
Statement.
(Gary R. Johnson)
Gary R. Johnson
Vice President and
General Counsel
Minneapolis, Minnesota
October 6, 1995
Exhibit 23.03
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our
report dated January 25, 1995 appearing on page 65 of Wisconsin Energy
Corporation's Annual Report on Form 10-K for the year ended December 31,
1994. We also consent to the reference to us under the heading "Experts"
in such Prospectus.
(Price Waterhouse LLP)
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
October 6, 1995
POWER OF ATTORNEY
WHEREAS, NORTHERN STATES POWER COMPANY, a Minnesota
corporation (the Company), is about to file with the Securities
and Exchange Commission, under the provisions of the Securities
Act of 1933, as amended, a Registration Statement relating to
the issuance of up to $300 million principal amount of First
Mortgage Bonds, and one or more amendments (including Post-
Effective Amendments) to said Registration Statement.
WHEREAS, each of the undersigned holds the office or
offices in the Company herein below set opposite their name
respectively;
NOW, THEREFORE, each of the undersigned hereby constitutes
and appoints ARLAND D. BRUSVEN, EDWARD J. MCINTYRE and GARY R.
JOHNSON, and each of them, individually, his/her attorney, with
full power to act for him/her and in his/her name, place, and
stead, to sign his/her name in the capacity or capacities set
forth below to any registration statement or amendments thereto
relating to the issuance of up to $300 million principal amount
of First Mortgage Bonds.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this 28th day of June, 1995.
(James J. Howard) (Douglas W. Leatherdale)
James J. Howard Douglas W. Leatherdale
Principal Executive Officer Director
& Director
(H. Lyman Bretting) (John E. Pearson)
H. Lyman Bretting John E. Pearson
Director Director
(David A. Christensen) (G. M. Pieschel)
David A. Christensen G. M. Pieschel
Director Director
(W. John Driscoll) (Margaret R. Preska)
W. John Driscoll Margaret R. Preska
Director Director
(Dale L. Haakenstad) (A. Patricia Sampson)
Dale L. Haakenstad A. Patricia Sampson
Director Director
(Allen F. Jacobson) (Edwin M. Theisen)
Allen F. Jacobson Edwin M. Theisen
Director Director
(Richard M. Kovacevich) (Edward J. McIntyre)
Richard M. Kovacevich Edward J. McIntyre
Director Principal Financial
Officer
(Roger D. Sandeen)
Roger D. Sandeen
Principal Accounting Officer
Securities and Exchange Commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
Harris Trust and Savings Bank
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Carolyn C. Potter; Harris Trust and Savings Bank;
311 West Monroe Street; Chicago, Illinois, 60606
312/461-2253
(Name, address and telephone number for agent for service)
NORTHERN STATES POWER COMPANY
(Name of obligor)
Minnesota
(State of Incorporation)
41-0448030
(I.R.S. Employer Identification Number)
414 Nicollet Mall
Minneapolis, Minnesota 55401
(Address of principal executive offices)
First Mortgage Bonds, Series due ________
(Title of Indenture Securities)
1. GENERAL INFORMATION. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Commissioner of Banks and Trust Companies, State of
Illinois, Springfield, Illinois; Chicago Clearing
House Association, 164 West Jackson Boulevard,
Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Harris Trust and Savings Bank is authorized to
exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate
of the Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now
in effect which includes the authority of the trustee to
commence business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972
between Harris Trust and Savings Bank, HTS Bank and Harris
Bankcorp, Inc. which constitutes the articles of
association of the Trustee as now in effect and includes
the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection
with the Registration Statement of Louisville Gas and
Electric Company, File No. 2-44295, and is incorporated
herein by reference.
2. A copy of the existing by-laws of the Trustee.
(included as Exhibit C to this statement)
3. The consents of the Trustee required by Section 321(b) of
the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its
supervising or examining authority.
(included as Exhibit B on page 3 of this statement)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, HARRIS TRUST AND SAVINGS BANK, a corporation
organized and existing under the laws of the State of Illinois,
has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 25th day of
September, 1995.
Harris Trust and Savings Bank
By:
Carolyn C. Potter
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the
Act.
Harris Trust and Savings Bank, as the Trustee herein named,
hereby consents that reports of examinations of said trustee by
Federal and State authorities may be furnished by such
authorities to the Securities and Exchange Commission upon
request therefor.
Harris Trust and Savings Bank
By:
Carolyn C. Potter
Assistant Vice President
EXHIBIT B
Attached is a true and correct copy of the statement of
condition of Harris Trust and Savings Bank as of June 30, 1995,
as published in accordance with a call made by the State Banking
Authority and by the Federal Reserve Bank of the Seventh Reserve
District.
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at
the close of business on June 30, 1995, a state banking
institution organized and operating under the banking laws of
this State and a member of the Federal Reserve System. Published
in accordance with a call made by the Commissioner of Banks and
Trust Companies of the State of Illinois and by the Federal
Reserve Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
OF DOLLARS
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin $975,130
Interest bearing balances $619,550
Securities:
a. Held-to-maturity securities $654,606
b. Available-for-sale securities $1,597,462
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds sold $272,684
Securities purchased under agreements to resell $0
Loans and lease financing receivables:
Loans and leases, net of unearned income $7,184,420
LESS: Allowance for loan and lease losses $91,061
Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b) $7,093,359
Assets held in trading accounts $335,699
Premises and fixed assets (including capitalized leases) $139,368
Other real estate owned $1,018
Investments in unconsolidated subsidiaries and associated companies $195
Customer's liability to this bank on acceptances outstanding $120,891
Intangible assets $21,763
Other assets $246,739
TOTAL ASSETS $12,078,464
LIABILITIES
Deposits:
In domestic offices $4,184,673
Non-interest bearing $2,391,354
Interest bearing $1,793,319
In foreign offices, Edge and Agreement subsidiaries, and IBF's $2,559,227
Non-interest bearing $33,115
Interest bearing $2,526,112
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds purchased $1,361,248
Securities sold under agreements to repurchase $1,496,277
Trading Liabilities $264,633
Other borrowed money:
a. With original maturity of one year or less $883,157
b. With original maturity of more than one year $13,390
Bank's liability on acceptances executed and outstanding $120,891
Subordinated notes and debentures $235,000
Other liabilities $178,632
TOTAL LIABILITIES $11,297,128
EQUITY CAPITAL
Common stock $100,000
Surplus $275,000
a. Undivided profits and capital reserves $409,797
b. Net unrealized holding gains (losses) on available-for-sale
securities ($3,461)
TOTAL EQUITY CAPITAL $781,336
Total liabilities, limited-life preferred stock, and equity capital $12,078,464
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare
that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
7/28/95
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is
true and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J. GLASSER,
Directors.
