<PAGE>
REGISTRATION NO. 333-
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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 jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
</TABLE>
414 NICOLLET MALL, MINNEAPOLIS, MINNESOTA 55401
(612) 330-5500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
<TABLE>
<S> <C>
EDWARD J. MCINTYRE JOHN P. MOORE, JR.
Vice President and Chief Financial Officer Corporate 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 and address, including zip 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:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
--------------------------
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. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
First Mortgage Bonds........................
Senior Notes................................ (1)(2) (1) $400,000,000(1)(2) $111,200(3)
Debt Securities.............................
</TABLE>
(1) Not applicable pursuant to the Note following the Calculation of
Registration Fee table and General Instruction II.D. to Form S-3; however in
no event will the aggregate maximum offering price of all securities issued
and sold pursuant to the Registration Statement exceed $400,000,000.
(2) Pursuant to Rule 429, in addition to the $400,000,000 aggregate principal
amount of securities being registered with this registration statement, the
combined prospectus contained herein will utilize $50,000,000 aggregate
principal amount of first mortgage bonds that were registered in
Registration Statement No. 33-63243, for which a registration fee of $17,242
was paid.
(3) Calculated pursuant to Rule 457(o).
------------------------------
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.
PURSUANT TO RULE 429, THE COMBINED PROSPECTUS CONTAINED HEREIN SHALL APPLY
TO REGISTRATION STATEMENT NO. 33-63243 AS TO $50,000,000 AGGREGATE PRINCIPAL
AMOUNT OF FIRST MORTGAGE BONDS AND THIS REGISTRATION STATEMENT AS TO
$400,000,000 AGGREGATE PRINCIPAL AMOUNT OF SECURITIES.
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<PAGE>
------------------------
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
------------------------
SUBJECT TO COMPLETION, DATED NOVEMBER 20, 1998
PROSPECTUS
[LOGO]
NORTHERN STATES POWER COMPANY
414 Nicollet Mall
Minneapolis, Minnesota 55401
(612) 330-7550
FIRST MORTGAGE BONDS
SENIOR NOTES
DEBT SECURITIES
------------------
We may offer for sale from time to time up to $400,000,000 aggregate
principal amount of our first mortgage bonds, senior notes or unsecured debt
securities. In addition, we may offer for sale from time to time up to an
additional $50,000,000 aggregate principal amount of first mortgage bonds. We
refer to the first mortgage bonds being offered by this prospectus as "New
Bonds" and we refer to these New Bonds, Senior Notes and Debt Securities
collectively as "Securities." We may sell the Securities in one or more series
through (i) underwriters or dealers, (ii) directly to a limited number of
institutional purchasers, or (iii) agents. See "Plan of Distribution." The
particular type of security being sold as well as the amount and terms of the
sale of such Securities will be determined at the time of sale and included in a
prospectus supplement that will accompany this Prospectus. Such Prospectus
Supplement will include if applicable:
- The names of any underwriters, dealers or agents involved in the
distribution of the Securities;
- Any applicable commissions or discounts and the net proceeds to the
Company from such sale;
- The aggregate principal amount and offering price of the Securities;
- The rate or rates (or method of calculation) of interest;
- The time or times and place of payment of interest;
- The maturity date or dates; and
- Any redemption terms or other specific terms of such series of Securities.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED
OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is .
<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
over the next two years, sell any combination of the Securities described in
this prospectus in one or more offerings up to a total dollar amount of
$400,000,000. In addition, using a prior shelf registration, we may also sell up
to an additional $50,000,000 of first mortgage bonds. This Prospectus provides
you with a general description of the Securities we may offer. Each time we sell
Securities, we will provide a Prospectus Supplement that will contain specific
information about the terms of that offering. The Prospectus Supplement may also
add, update or change information contained in this Prospectus. You should read
both this Prospectus and any Prospectus Supplement together with additional
information described under the heading "WHERE YOU CAN FIND MORE INFORMATION."
We believe we have included all information material to investors but
certain details that may be important for specific investment purposes have not
been included. To see more detail, you should read the exhibits filed with this
registration statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filing made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
- The Company's Annual Report on Form 10-K for the year ended December 31,
1997;
- The Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998; and
- The Company's Current Reports on Form 8-K dated March 4, 1998, March 5,
1998, March 11, 1998, April 21, 1998, April 22, 1998, May 20, 1998 and
October 6, 1998.
We are not required to, and do not, provide annual reports to holders of our
debt securities unless specifically requested by a holder.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
(612) 330-7550
You should rely only on the information incorporated by reference or
provided in this Prospectus or any Prospectus Supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this Prospectus or any Prospectus
Supplement is accurate as of any date other than the date on the front of those
documents.
2
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[LOGO]
Northern States Power Company, a Minnesota corporation (the "Company"), is
an operating public utility engaged in the generation, transmission and
distribution of electricity in Minnesota, North Dakota and South Dakota. The
Company also distributes natural gas in Minnesota and North Dakota. Through our
wholly-owned subsidiary, Northern States Power Company, a Wisconsin corporation,
we also engage in the generation, transmission and distribution of electricity
and the distribution of natural gas 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 1997, the Company and NSP-Wisconsin derived about 62
percent of their combined electric retail revenue from sales in the
Minneapolis-St. Paul Metropolitan area and about 54 percent of their gas
revenues from sales in the St. Paul area. The Company's and NSP-Wisconsin's
combined electric generation for 1997 was provided for by coal (62%), nuclear
(34%), and renewable and other fuels (4%). The Company currently operates three
nuclear units that were placed in service in 1971, 1973 and 1974. The Company
has no additional nuclear units under construction.
The Company's other primary subsidiaries include:
- NRG Energy, Inc. ("NRG"), which operates and owns interests in
independent, non-regulated power and energy businesses in the United
States and other countries.
- Viking Gas Transmission Company ("Viking"), which owns and operates a
500-mile interstate natural gas pipeline providing gas transportation
services to customers in the Upper Midwest from connections with three
major pipelines in the United States and Canada.
- Eloigne Company ("Eloigne"), which owns interests in affordable housing
projects, principally within the Company's service territory.
- Energy Masters International Inc. (formerly Cenerprise, Inc.) ("Energy
Masters"), which delivers natural gas and electric products and services
to commercial and industrial customers, utilities, municipalities and
energy marketers, and offers performance contracting to customers
nationwide.
The Company and its subsidiaries collectively are referred to herein as NSP.
For the year ended December 31, 1997, NSP reported assets of $7.1 billion,
revenues of approximately $2.7 billion, after tax income from ongoing operations
of $260.4 million (excluding merger costs and the write-down of an NRG project)
and earnings per common share from ongoing operations of $1.77 (excluding merger
costs and the write-down of an NRG project). For this same period, the earnings
(loss) contributions of NRG, Eloigne and Energy Masters were $0.20, $0.03 and
$(0.08) per common share.
The Company was incorporated in 1909 under the laws of Minnesota.
3
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USE OF PROCEEDS
We will add the net proceeds from the sale of the Securities to our general
funds and use such proceeds for general corporate purposes, which may include
the payment at maturity or the redemption, refunding, refinancing or purchase of
one or more series of outstanding first mortgage bonds, and the repayment of
outstanding short-term borrowings incurred in connection with our continuing
construction program. Our short-term borrowings aggregated $226 million as of
September 30, 1998. The specific allocation of the proceeds of a particular
series of the Securities will be described in the Prospectus Supplement.
NSP'S RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1997 1996 1995
12 MONTHS ----- ----- -----
ENDED
SEPTEMBER 30,
1998
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(UNAUDITED)
<S> <C> <C> <C> <C>
Ratio of Earning to Fixed Charges............................... 2.7 2.9 3.8 3.9
<CAPTION>
1994 1993
----- -----
<S> <C> <C>
Ratio of Earning to Fixed Charges............................... 4.0 4.0
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, (i)
earnings consist of income from continuing operations plus fixed charges,
federal and state income taxes, 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.
Assuming that variable interest rate debt continues at interest rates in
effect on September 30, 1998, the annual interest requirement on long-term debt
of NSP outstanding at September 30, 1998, was $145,700,000.
SECURITIES
We may issue the Securities in one or more series as (i) first mortgage
bonds (referred to as New Bonds in this Prospectus); (ii) notes (referred to as
Senior Notes) secured until the Release Date (as defined below) by first
mortgage bonds; or (iii) unsecured debt securities (referred to as Debt
Securities). Following the Release Date (as discussed below), any outstanding
Senior Notes secured by first mortgage bonds will cease to be secured and the
Senior Notes will become unsecured obligations of the Company. The New Bonds,
Senior Notes and Debt Securities are described below under the applicable
headings. The descriptions contain summaries of selected provisions of the
indentures under which the Securities will be issued. These summaries are not
complete. The forms of the indentures have been filed as exhibits to the
registration statement and you should read the indentures for provisions that
may be important to you. In the summaries below, we have included references to
section numbers of the applicable indentures so that you can easily locate these
provisions. Capitalized terms used in the summaries have the meanings specified
in the applicable indenture.
We are not required to issue future issues of debt securities under the
indentures described in this Prospectus, and we are free to use other indentures
or documentation, containing provisions different from those described in this
Prospectus, in connection with future issues of other debt securities.
The Securities will be represented either by Global Securities registered in
the name of The Depository Trust Company ("DTC"), as depository ("Depository"),
or its nominee, or by securities in certificate form issued to the registered
owners, as set forth in the applicable Prospectus Supplement. See "Book-Entry
System" herein.
4
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DESCRIPTION OF NEW BONDS
The New Bonds will be a new series of first mortgage bonds issued under the
Trust Indenture dated February 1, 1937 (the "1937 Indenture") as supplemented by
45 supplemental trust 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 "Mortgage
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 "Mortgage Indenture." Excluding the New Bonds, as of
September 30, 1998, there were 16 series of first mortgage bonds in an aggregate
principal amount of $1.3 billion outstanding under the Mortgage Indenture.
The Restated Indenture amends and restates the 1937 Indenture and the
supplemental indentures. The Restated Indenture will become effective and
operative on the Effective Date, which will be the date that all first mortgage
bonds of each series issued under the Mortgage Indenture prior to May 1, 1988
have been retired through payment or redemption (including those first mortgage
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) the holders of the
requisite principal amount of such first mortgage bonds consent to the
amendments contained in the Restated Indenture. Holders of the New Bonds and of
each other series of first mortgage bonds issued under the Mortgage Indenture
after May 1, 1988 likewise will be bound by the amendments contained in the
Restated Indenture when they become effective and operative. Unless the consent
of the holders of first mortgage bonds of each series issued prior to May 1,
1988 is obtained or such first mortgage bonds are retired prior to their
maturity, the Company presently expects the Restated Indenture to become
effective no earlier than March 1, 2011.
TERMS OF NEW BONDS
We will issue the New Bonds as fully registered bonds without coupons in
denominations of multiples of $1,000. We may issue New Bonds in temporary form
if, for any reason, we are 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.
New Bonds will be interchangeable in the manner provided in Article II of the
New Supplemental Indenture.
You will not be charged for any exchange or transfer of New Bonds, other
than for any taxes or other governmental charges.
The terms and other specific information applicable to the series of New
Bonds in respect of which this Prospectus is being delivered will be set forth
in the Prospectus Supplement that will accompany this Prospectus. Such terms and
other information will include:
- the designation, aggregate principal amount and offering price of such
series of New Bonds;
- the rate or rates per annum (or method of calculation) at which such
series of New Bonds will bear interest and the date from which interest
will accrue;
- the dates on which interest will be payable;
- the record dates for payments of interest;
- the date or dates on which such series of New Bonds will mature; and
- any optional or mandatory redemption terms or other specific terms
applicable to such series of New Bonds.
The holders of the outstanding first mortgage bonds do not, and the holders
of the New Bonds will not, have the right to require us to repurchase such first
mortgage bonds if we become involved in a highly leveraged or change in control
transaction. The Mortgage Indenture does not have any provision that is
5
<PAGE>
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 below
under the subcaption "Security for New Bonds." In addition, any change in
control transaction and any incurrence of substantial 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.
SECURITY FOR NEW BONDS
In the opinion of counsel for the Company, the New Bonds will be secured
equally and ratably, except as to sinking fund provisions, with all of the
Company's other outstanding first mortgage 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 Mortgage Indenture subjects 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 Mortgage 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 first mortgage 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
- Rights of parties to agreements with the Company relating to property
owned or used jointly with such party, provided such rights:
- do not materially impair the use of such property in the normal course
of the Company's business;
- do not materially affect the security provided by the Mortgage
Indenture; and
- are not inconsistent with the remedies of the Mortgage Trustee upon a
Completed Default.
- Leases existing on the Effective Date of the Restated Indenture affecting
property owned by the Company on the Effective Date.
- Leases which do not interfere in any material respect with the use by the
Company of the property for its intended purpose and which will not have a
material adverse impact on the security provided by the Mortgage
Indenture.
- Other leases relating to 5% or less of the sum of the Company's
Depreciable Property and Land.
6
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- Any mortgage, lien, charge or other encumbrance prior or equal to the Lien
of the Indenture (other than a Prepaid Lien) existing on the date the
property is acquired by the Company, provided that on such acquisition
date:
- no Default has occurred and is continuing;
- the principal amount secured by such mortgage, lien, charge or
encumbrance does not exceed 66 2/3% of the lesser of the Cost or Fair
Value of the property; and
- such mortgage shall apply only to the property originally subject
thereto, the Company shall close the mortgage and the Company shall not
issue additional indebtedness thereunder.
(Section 1.03 of the Restated Indenture)
Following the retirement of the first mortgage bonds of each series issued
prior to May 1, 1988, the holders of 66 2/3% of the principal amount of first
mortgage 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 Mortgage 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, we have agreed to pay to the Mortgage Trustee on each 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 first mortgage
bonds, other than Bonds of the Series due February 1, 1999, Bonds of the Series
due December 1, 2000, Bonds of the Series due October 1, 2001, Bonds of the
Series due March 1, 2003, Bonds of the Series due April 1, 2003, Bonds of the
Series due December 1, 2005, Bonds of the Series due July 1, 2025, Bonds of the
Series due March 1, 2028, and other than Pollution Control Series C, J, K, L, M,
N, O, P, and Resource Recovery Series I. We may offset sinking fund payments by
(a) application of net Permanent Additions of a Cost or Fair Value, whichever is
less, equal to 150% of the principal amount of first mortgage bonds which
otherwise would be required to be retired by the sinking fund or (b) retirement
or delivery to the Mortgage Trustee of first mortgage bonds of the series for
which the sinking fund is applicable. The Mortgage Trustee is required to apply
sinking fund money to the purchase or redemption of first mortgage 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, March 1, 1998
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 first mortgage bonds, we have agreed to pay to
the Mortgage Trustee on each 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 first mortgage
7
<PAGE>
bonds and (iv) Cost or Fair Value, whichever is less, of Permanent Additions
after deducting property retirements. We may withdraw moneys from the
Maintenance Fund in amounts equal to retirements of first mortgage bonds and net
Permanent Additions. 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 first mortgage bonds. Any such redemption would be at the
applicable regular redemption price of the first mortgage bonds to be redeemed
and subject to any restrictions on the redemption of such first mortgage 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 Mortgage
Indenture by replacing the current Maintenance Fund deposit formula with the
requirement that we pay to the Mortgage Trustee on each May 1 an amount equal to
2.50% of our 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 first mortgage 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 Mortgage 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 first mortgage bonds.
We have agreed to maintain our 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 first mortgage bonds that we may issue under
the Mortgage Indenture is not limited, except as described below. We may issue
additional first mortgage bonds in amounts equal to (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 first mortgage
bonds, which have not been otherwise used under the Mortgage Indenture (Article
VI of the 1937 Indenture); or (c) the amount of cash deposited with the Mortgage
Trustee, which cash may be withdrawn on the same basis as additional first
mortgage 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
Mortgage Indenture by increasing the percentage in clause (a) above from 60% to
66 2/3%. (Section 5.03 of the Restated Indenture.)
We will issue the New Bonds under clause (a) and/or (b) above. At September
30, 1998, the amount of net Permanent Additions available for the issuance of
Bonds exceeded $4.0 billion, of which $667 million could be used to authenticate
the $400 million principal amount of the New Bonds. As of September 30, 1998,
$349 million of retired first mortgage bonds were available to authenticate up
to $349 million of New Bonds.
We may not issue any additional first mortgage bonds 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 first mortgage 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;
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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 first mortgage bonds is at
the maximum allowable rate, Earnings Applicable to Bond Interest for the twelve
months ended September 30, 1998, would be 3.7 times the annual interest
requirements on the first mortgage bonds including the New Bonds at an assumed
6.25% interest rate. Additional first mortgage bonds may vary 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 Mortgage 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 first mortgage
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
We have agreed that the sum of (i) all dividends and distributions on our
common stock after September 30, 1954 (other than in common stock), and (ii) the
cost of all shares of our common stock acquired by us after that date shall not
exceed the sum of (a) the earned surplus of the Company and our Qualified
Subsidiary Companies, consolidated, at September 30, 1954, and (b) an amount
equal to the consolidated net income of the Company and our 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, we
will deduct 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 our
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
our 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 us for the purchase or other acquisition of our common stock after the
Effective Date exceeds the Considerations received by us 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 our preferred stock 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, we will deduct
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.)
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RELEASE PROVISIONS
The Mortgage Indenture permits the release from its lien of any property
upon depositing or pledging cash or certain other property of comparable Fair
Value. The Mortgage Indenture also permits the sale or other disposal of
securities not pledged under the Mortgage Indenture, contracts, accounts, motor
cars, and certain equipment and supplies; the cancellation, change or alteration
of leases, rights-of-way and easements; and the surrender and modification of
any franchise or governmental consent subject to certain restrictions; in each
case without any release or consent by the Mortgage 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 first mortgage bonds of each series issued
prior to May 1, 1988, (a) we 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) we may enter into leases
with respect to 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 us and will not have a material adverse impact on the
security afforded by the Mortgage Indenture. (Section 11.02(b) of the Restated
Indenture.)
Following the retirement of the first mortgage 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 first mortgage bonds Outstanding. (Section
11.03(k) of the Restated Indenture.) When effective and upon satisfaction of the
requirements set forth in the Mortgage Indenture, this provision would permit us
to spin-off or otherwise dispose of a substantial amount of assets or a line of
business without depositing cash or property with the Mortgage Trustee or
obtaining the consent of the bondholders.
MODIFICATION OF THE MORTGAGE INDENTURE
With the consent of the Company, the provisions of the Mortgage Indenture
may be changed by the affirmative vote of the holders of 80% in principal amount
of the first mortgage bonds Outstanding except that, among other things, the
maturity of a first mortgage 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 first mortgage bond so affected. (Article XVIII of
the 1937 Indenture.)
The Supplemental Indenture dated May 1, 1985 amended the foregoing
provisions of the Mortgage Indenture by reducing the 80% requirement to 66 2/3%.
This amendment will not become effective and operative until all first mortgage
bonds of each series issued prior to May 1, 1985 have been retired or until all
the holders thereof have consented to such amendment. Holders of the New Bonds
and of each subsequent series issued under the Mortgage 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 MORTGAGE TRUSTEE
In case of a Completed Default either the Mortgage Trustee or the holders of
25% in principal amount of (i) the first mortgage bonds Outstanding or (ii) the
first mortgage bonds affected by such default, may declare the first mortgage
bonds due and payable, subject to the right of the holders of a majority of the
first mortgage bonds then Outstanding to rescind or annul such action. Further,
the Mortgage Trustee is obligated to take the actions provided in the Mortgage
Indenture to enforce payment of the first mortgage bonds and the Lien of the
Indenture upon being requested to do so by the holders of a majority in
principal amount of the first mortgage bonds. However, the holders of a majority
in principal amount of the first mortgage bonds may direct the taking of any
such action or the refraining therefrom as
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is not contrary to law or the Mortgage Indenture. Before taking certain actions,
the Mortgage 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 Mortgage Indenture as
Completed Defaults:
- default in payment of principal of any first mortgage bond,
- default continued for 90 days in payment of interest on any first mortgage
bond,
- default in the covenant contained in Section 11 of Article VIII of the
Mortgage Indenture (Section 8.11 of the Restated Indenture) with respect
to bankruptcy, insolvency, assignment or receivership; and
- 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 Mortgage Trustee is required to give notice to bondholders (1) within 90
days after the occurrence of a default known to the Mortgage Trustee, or (2) if
the Mortgage Trustee is unaware of a default during such 90 day period, then,
within 30 days after the Mortgage Trustee knows of such default, unless such
default has been cured before giving such notice. However, in the case of a
default resulting from the failure to make any payment of principal of or
interest on any first mortgage bonds or to make any sinking fund payment, the
Mortgage Trustee may withhold such notice if its board of directors, executive
committee or a trust committee of directors or responsible officers determines
in good faith that withholding 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 Mortgage Trustee such information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of the Mortgage Indenture as may be required by the
rules and regulations of the SEC including a certificate, furnished not less
frequently than annually, as to the Company's compliance with all of the
conditions and covenants under the Mortgage 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 by the Mortgage Indenture has been paid,
or adequate provision for such payment has been made, the Mortgage Trustee shall
cancel and discharge the Mortgage Indenture. (Article XVII of the 1937 Indenture
and Article XVII of the Restated Indenture.) After the Effective Date, we may
deposit with the Mortgage Trustee any combination of cash or Government
Obligations in order to provide for the payment of any series or all of the
first mortgage bonds Outstanding. The Mortgage Indenture also provides that we
must furnish, to the Mortgage Trustee, Officers' Certificates, certificates of
an Engineer, Appraiser or other expert and, in certain cases, Accountants'
Certificates in connection with the authentication of first mortgage 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.)
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DESCRIPTION OF SENIOR NOTES
GENERAL
The Senior Notes may be issued under an indenture (the "Senior Note
Indenture") between the Company and Norwest Bank Minnesota, National
Association, as trustee (the "Senior Note Trustee"). Until the Release Date (as
defined below), the Senior Notes will be secured as to payment of principal and
interest by one or more series of the Company's first mortgage bonds issued,
pledged and delivered by the Company to the Senior Note Trustee. See "Security
for the New Bonds." FOLLOWING THE RELEASE DATE, THE SENIOR NOTES WILL CEASE TO
BE SECURED AS TO THE PAYMENT OF PRINCIPAL AND INTEREST, WILL BECOME UNSECURED
GENERAL OBLIGATIONS OF THE COMPANY AND WILL RANK ON A PARITY WITH OUR OTHER
UNSECURED INDEBTEDNESS. The amount of Senior Notes that we may issue under the
Senior Note Indenture is not limited, except that, prior to the Release Date,
the amount of Senior Notes that we may issue cannot exceed the amount of first
mortgage bonds that we are able to issue under our Mortgage Indenture. See
"Description of New Bonds--Issuance of Additional Bonds." At September 30, 1998,
we could issue $1.8 billion of additional first mortgage bonds at an assumed
6.25% interest rate.
The Senior Notes may be issued in one or more series, may be issued at
various times, may have differing maturity dates and may bear interest at
differing rates. The Prospectus Supplement applicable to each issue of Senior
Notes will specify:
- the title, aggregate principal amount and offering price of such Senior
Notes;
- the interest rate or rates, or method of calculation of such rate or
rates, on such Senior Notes, and the date from which such interest will
accrue;
- the dates on which such interest will be payable;
- the record dates for payments of interest;
- the date on which such Senior Notes will mature;
- any redemption terms;
- the period or periods within which, the price or prices at which and the
terms and conditions upon which such Senior Notes may be repaid, in whole
or in part, at the option of the holder thereof; and
- other specific terms applicable to such Senior Notes.
Unless otherwise indicated in the applicable Prospectus Supplement, the Senior
Notes will be denominated in United States currency in minimum denominations of
$1,000 and integral multiples thereof, except that the denomination of any
Senior Note issued in the form of a Global Security will not exceed $200,000,000
without the approval of the Depository.
Unless otherwise indicated in the applicable Prospectus Supplement, there
are no provisions in the Senior Note Indenture or the Senior Notes that require
us to redeem, or permit the holders to cause a redemption of, the Senior Notes
or that otherwise protect the holders in the event that we incur substantial
additional indebtedness, whether or not in connection with a change in control
of the Company. However, any change in control transaction that involves the
incurrence of substantial additional long-term indebtedness (as notes, first
mortgage bonds or otherwise) by us 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.
REGISTRATION, TRANSFER AND EXCHANGE
Senior Notes of any series may be exchanged for other Senior Notes of the
same series of any authorized denominations and of a like aggregate principal
amount and kind. (Section 2.06.) Unless
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otherwise indicated in the applicable Prospectus Supplement, Senior Notes may be
presented for registration of transfer (duly endorsed or accompanied by a duly
executed written instrument of transfer), at the office of the Senior Note
Trustee maintained for such purpose with respect to any series of Senior Notes
and referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in the
Senior Note Indenture. Such transfer or exchange will be effected upon being
satisfied with the documents of title and indemnity of the person making the
request. (Sections 2.06 and 2.07.)
In the event of any redemption of Senior Notes of any series, the Senior
Note Trustee will not be required to exchange or register a transfer of any
Senior Notes of such series selected, called or being called for redemption
except, in the case of any Senior Note to be redeemed in part, the portion
thereof not to be so redeemed. (Section 2.06.) See "BOOK-ENTRY SYSTEM."
PAYMENT AND PAYING AGENTS
Principal of and interest and premium, if any, on Senior Notes issued in the
form of Global Securities
will be paid in the manner described below under the caption "BOOK-ENTRY
SYSTEM." Unless otherwise indicated in the applicable Prospectus Supplement,
interest on Senior Notes that are in the form of certificated securities will be
paid by check mailed to the holder at such person's address as it appears in the
register for the Senior Notes maintained by the Senior Note Trustee; however, a
holder of $10,000,000 or more Senior Notes having the same interest payment
dates will be entitled to receive payments of interest by wire transfer if
appropriate wire transfer instructions have been received by the Senior Note
Trustee on or prior to the applicable record date. (Section 2.12.) Unless
otherwise indicated in the applicable Prospectus Supplement, the principal of,
and interest at maturity and premium, if any, on Senior Notes in the form of
certificated securities will be payable in immediately available funds at the
office of the Senior Note Trustee. (Section 2.12.)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any Senior Note which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the holder
of such Senior Note will thereafter look only to the Company for payment
thereof. (Section 5.04.)
SECURITY FOR SENIOR NOTES
Until the Release Date (as defined below), the Senior Notes will be secured
as to payment of principal
and interest by one or more series of the Company's first mortgage bonds issued,
pledged and delivered by the Company to the Senior Note Trustee ("Senior Note
Mortgage Bonds"). Each series of Senior Note Mortgage Bonds will have the same
stated rate or rates of interest (or interest calculated in the same manner),
payment dates, maturity dates and redemption provisions as the Senior Notes
which they secure. Satisfaction of the Company's obligations with respect to
principal of, and interest on, the Senior Notes will satisfy the Company's
obligations with respect to principal of, and interest on, the Senior Note
Mortgage Bonds securing such Senior Notes. (Section 4.11.) Until the Release
Date, the Senior Note Mortgage Bonds secure the payment of the principal of and
interest on the Senior Notes; however, at no time will they secure the payment
of any premium on the Senior Notes. Each series of Senior Note Mortgage Bonds
will be a series of first mortgage bonds of the Company, all of which are
secured by a lien on certain property owned by the Company. In certain
circumstances, we may reduce the aggregate principal amount of the Senior Note
Mortgage Bonds held by the Senior Note Trustee, but in no event to an amount
lower than the aggregate principal amount of the outstanding Senior Notes which
they secure. (Section 4.08.) We may issue, pledge and deliver to the Senior Note
Trustee additional first mortgage bonds to secure other issuances of Senior
Notes under the Mortgage Indenture. FOLLOWING THE RELEASE DATE, THE SENIOR NOTE
MORTGAGE BONDS WILL CEASE TO SECURE THE PAYMENT OF THE PRINCIPAL OF AND INTEREST
ON THE SENIOR NOTES, AND THE SENIOR NOTES WILL BECOME UNSECURED, GENERAL
OBLIGATIONS OF THE COMPANY. THEREFORE, THE SENIOR NOTES EFFECTIVELY WILL BE
JUNIOR IN PRIORITY OF PAYMENT TO ANY SECURED OBLIGATIONS OF THE
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COMPANY. Following the Release Date, certain first mortgage bonds will remain
outstanding and the Company will be permitted to issue additional first mortgage
bonds.
RELEASE DATE
Our Articles of Incorporation currently limit the amount of unsecured debt
that we are able to issue. Without the approval of our preferred stockholders,
we generally are not able to issue unsecured debt if, after such issuance, all
of our outstanding unsecured debt would exceed 20% of the sum of our secured
debt, capital stock and capital surplus. Under this test, as of September 30,
1998, we would have been able to issue additional unsecured debt of
approximately $509 million.
THE RELEASE DATE WILL BE THE EFFECTIVE DATE OF THE AMENDMENT TO OUR ARTICLES
OF INCORPORATION REMOVING THIS LIMITATION ON THE ISSUANCE OF UNSECURED DEBT. WE
PRESENTLY EXPECT TO ASK OUR SHAREHOLDERS TO APPROVE SUCH AN AMENDMENT AT OUR
1999 ANNUAL MEETING OF SHAREHOLDERS. AS DISCUSSED ABOVE, FOLLOWING THE RELEASE
DATE, ANY OUTSTANDING SENIOR NOTES WILL BECOME UNSECURED, GENERAL OBLIGATIONS OF
THE COMPANY AND ANY FUTURE ISSUES OF SENIOR NOTES WILL BE ISSUED AS UNSECURED,
GENERAL OBLIGATIONS OF THE COMPANY.
EVENTS OF DEFAULT
The following constitute events of default under the Senior Note Indenture:
- default in the payment of principal of and premium, if any, on any Senior
Note when due and payable whether at the stated maturity thereof, upon
redemption thereof (provided that such redemption is not conditioned upon
the deposit of sufficient moneys for such redemption) or upon declaration
of acceleration or otherwise;
- default in the payment of interest on any Senior Note when due which
continues for 30 days;
- default in the performance or breach of any other covenant or warranty of
the Company in the Senior Note Indenture and the continuation thereof for
60 days after written notice to the Company as provided in the Senior Note
Indenture;
- prior to the Release Date, the occurrence of a completed default under the
Mortgage Indenture, of which the Mortgage Trustee, the Company or the
holders of at least 25% in aggregate principal amount of the outstanding
Senior Notes have given written notice thereof to the Senior Note Trustee;
and
- certain events of bankruptcy, insolvency or reorganization of the Company.
(Section 8.01.)
If an event of default occurs and is continuing, either the Senior Note
Trustee or the holders of a majority in principal amount of the outstanding
Senior Notes may declare the principal amount of all Senior Notes to be due and
payable immediately. Upon such acceleration of the Senior Notes, the Senior Note
Trustee is empowered to cause the mandatory redemption of the Senior Note
Mortgage Bonds. At any time after an acceleration of the Senior Notes has been
declared, but before a judgment or decree of the immediate payment of the
principal amount of the Senior Notes has been obtained and so long as all first
mortgage bonds have not been accelerated, if the Company pays or deposits with
the Senior Note Trustee a sum sufficient to pay all matured installments of
interest and the principal and any premium which has become due otherwise than
by acceleration and all defaults shall have been cured or waived, then such
payment or deposit will cause an automatic rescission and annulment of the
acceleration of the Senior Notes. (Section 8.01.)
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The Senior Note Trustee generally will be under no obligation to exercise
any of its rights or powers under the Senior Note Indenture at the request or
direction of any of the holders unless such holders have offered acceptable
indemnity to the Senior Note Trustee. (Section 9.02.) The holders of a majority
in principal amount of the outstanding Senior Notes generally will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Senior Note Trustee, or of exercising any trust or power
conferred on the Senior Note Trustee, with respect to the Senior Notes. (Section
8.07.) Each holder of any Senior Note has the right to institute a proceeding
with respect to the Senior Note Indenture, but such right is subject to certain
conditions precedent specified in the Senior Note Indenture. (Section 8.04.) The
Senior Note Indenture provides that the Senior Note Trustee, within 90 days
after the occurrence of a default with respect to the Senior Notes, is required
to give the holders of the Senior Notes notice of such default, unless cured or
waived, but, except in the case of default in the payment of principal of, or
premium, if any, or interest on any Senior Notes, the Senior Note Trustee may
withhold such notice if it determines in good faith that it is in the interest
of such holders to do so. (Section 8.08.) The Company is required to deliver to
the Senior Note Trustee each year a certificate as to whether or not, to the
knowledge of the officers signing such certificate, the Company is in compliance
with the conditions and covenants under the Senior Note Indenture. (Section
6.06.)
MODIFICATION
The Company and the Senior Note Trustee may modify and amend the Senior Note
Indenture with the consent of the holders of a majority in principal amount of
the outstanding Senior Notes affected thereby, provided that no such
modification or amendment may, without the consent of the holder of each
outstanding Senior Note affected thereby, (a) change the stated maturity of any
installment of principal of, or interest on, any Senior Note or any premium
payable on the redemption thereof, or change the redemption price; (b) reduce
the principal amount of, or the interest or premium payable on, any Senior Note
or reduce the amount of principal that could be declared due and payable prior
to the stated maturity; (c) change the coin or currency of any payment of
principal of, or any premium or interest on, any Senior Note; (d) impair the
right of a holder to institute suit for the enforcement of any payment on or
with respect to any Senior Note; (e) reduce the percentage in principal amount
of outstanding Senior Notes, the consent of the holders of which is required to
modify or amend the Senior Note Indenture; (f) impair the security interest of
the Senior Note Trustee in the Senior Note Mortgage Bonds held by it or, prior
to the Release Date, reduce the principal amount of Senior Note Mortgage Bonds
securing the Senior Notes to an amount less than the principal amount of the
Senior Notes or alter the payment provisions of such Senior Note Mortgage Bonds
in a manner adverse to the holders of the Senior Notes; or (g) modify the
foregoing requirements or reduce the percentage of outstanding Senior Notes
necessary to waive any past default to less than a majority. The Company and the
Senior Note Trustee may modify and amend the Senior Note Indenture without the
consent of the holders (a) to add to the covenants of the Company for the
benefit of the holders or to surrender a right conferred on the Company in the
Senior Note Indenture; (b) to add further security for the Senior Notes; or (c)
to make certain other modifications, generally of a ministerial or immaterial
nature. (Sections 13.01 and 13.02.)
DEFEASANCE AND DISCHARGE
We may be discharged from all obligations in respect to the Senior Notes and
the Senior Note Indenture (except for certain obligations such as obligations to
register the transfer or exchange of Senior Notes, replace stolen, lost or
mutilated Senior Notes and maintain paying agencies) if we irrevocably deposit
with the Senior Note Trustee, in trust for the benefit of holders of Senior
Notes, money or United States government obligations (or any combination
thereof) which will provide enough money to make all payments of principal of,
and any premium and interest on, the Senior Notes on the dates such payments are
due. In order to discharge such obligations, we must deliver to the Senior Note
Trustee an opinion of counsel to the effect that the holders of the Senior Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance or discharge of the Senior Note Indenture. Upon any
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discharge of our obligations as described above, the holders of Senior Notes
must look only to such trust fund, and not to us, for payments on the Senior
Notes. (Section 5.01.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We will not merge into any other corporation or sell or otherwise transfer
all or substantially all our assets unless the successor or transferee
corporation assumes by supplemental indenture our obligations to pay the
principal and premium and interest on all the Senior Notes and our obligation to
perform every covenant of the Senior Note Indenture to be performed or observed
by the Company. Prior to the Release Date, the successor or transferee
corporation must also assume our obligations under the Mortgage Indenture with
respect to the Senior Note Mortgage Bonds. Upon any such merger, sale, or
transfer of all or substantially all of the assets of the Company, the successor
or transferee corporation will succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Senior Note Indenture
with the same effect as if such successor corporation had been originally named
as the Company therein and the Company will be released from all obligations
under the Senior Note Indenture. The Senior Note Indenture defines all or
substantially all of the assets of the Company as being 50% or more of the total
assets of the Company as shown on the balance sheet of the Company as of the end
of the prior year and specifically permits any such sale, transfer or conveyance
during a calendar year of less than 50% of total assets without the consent of
the holders of the Senior Notes. (Sections 12.01 and 12.02.)
RESIGNATION OR REMOVAL OF SENIOR NOTE TRUSTEE
The Senior Note Trustee may resign at any time by notifying the Company in
writing and specifying the day upon which the resignation is to take effect.
Such resignation will not take effect, however, until a successor trustee has
been appointed. (Section 9.10.)
The holders of a majority in principal amount of the outstanding Senior
Notes may remove the Senior Note Trustee at any time. In addition, so long as no
event of default or event which, with the giving of notice or lapse of time or
both, would become an event of default has occurred and is continuing, we may
remove the Senior Note Trustee upon notice to the holder of each Senior Note
outstanding and appointment of a successor Senior Note Trustee. (Section 9.10.)
CONCERNING THE SENIOR NOTE TRUSTEE
Norwest Bank Minnesota, National Association is the Senior Note Trustee. We
maintain banking relationships with the Senior Note Trustee in the ordinary
course of business. The Senior Note Trustee also acts as trustee for certain of
our pollution control and resource recovery bonds and will also act as Debt
Trustee.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may be issued in one or more new series under an
indenture (the "Debt Indenture") between the Company and Norwest Bank Minnesota,
National Association, or any other trustee to be named, as trustee (the "Debt
Trustee"). The term "Debt Securities" does not include Senior Notes, which are
issued under the Senior Note Indenture. See "Description of Senior Notes." The
Debt Securities will be unsecured obligations of the Company and will rank on a
parity with other unsecured indebtedness of the Company. Except as described in
the next sentence, the amount of Debt Securities that we may issue under the
Debt Indenture is not limited. As described above under the caption "Description
of Senior Notes--Release Date," our Articles of Incorporation currently limit
the amount of unsecured debt that we are able to issue. We presently expect to
ask our shareholders at the 1999 Annual Meeting to approve an amendment to our
Articles removing such limitation.
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The Debt Securities may be issued in one or more series, may be issued at
various times, may have differing maturity dates and may bear interest at
differing rates. The Prospectus Supplement applicable to each issue of Debt
Securities will specify:
- the title, aggregate principal amount and offering price of such Debt
Securities;
- the interest rate or rates, or method of calculation of such rate or
rates, on such Debt Securities, and the date from which such interest will
accrue;
- the dates on which such interest will be payable;
- the record dates for payments of interest;
- the date on which such Debt Securities will mature;
- any redemption terms;
- the period or periods within which, the price or prices at which and the
terms and conditions upon which such Debt Securities may be repaid, in
which or in part, at the option of the holder thereof; and
- other specific terms applicable to such Debt Securities.
The applicable Prospectus Supplement also may describe certain special
United States federal income tax considerations (if any) applicable to Debt
Securities sold at an original issue discount and certain special United States
federal income tax or other considerations (if any) applicable to any Debt
Securities which are denominated in a currency or currency unit other than
United States dollars.
Unless otherwise indicated in the applicable Prospectus Supplement, the Debt
Securities will be denominated in United States currency in minimum
denominations of $1,000 and integral multiples thereof, except that the
denomination of any Debt Security issued in the form of a Global Security will
not exceed $200,000,000 without the approval of the Depository.
Unless otherwise indicated in the applicable Prospectus Supplement, there
are no provisions in the Debt Indenture or the Debt Securities that require us
to redeem, or permit the holders to cause a redemption of, the Debt Securities
or that otherwise protect the holders in the event that we incur substantial
additional indebtedness, whether or not in connection with a change in control
of the Company. However, any change in control transaction that involves the
incurrence of substantial additional long-term indebtedness (as notes, first
mortgage bonds or otherwise) by us 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.
REGISTRATION, TRANSFER AND EXCHANGE
Debt Securities of any series may be exchanged for other Debt Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and kind. (Section 2.06.)
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer), at the office of
the Debt Trustee maintained for such purpose with respect to any series of Debt
Securities and referred to in the applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the Debt Indenture. Such transfer or exchange will be effected upon
being satisfied with the documents of title and indemnity of the person making
the request. (Sections 2.06 and 2.07.)
In the event of any redemption of Debt Securities of any series, the Debt
Trustee will not be required to exchange or register a transfer of any Debt
Securities of such series selected, called or being called for
17
<PAGE>
redemption except, in the case of any Debt Security to be redeemed in part, the
portion thereof not to be so redeemed. (Section 2.06.) See "BOOK-ENTRY SYSTEM."
PAYMENT AND PAYING AGENTS
Principal of and interest and premium, if any, on Debt Securities issued in
the form of Global Securities will be paid in the manner described below under
the caption "BOOK-ENTRY SYSTEM." Unless otherwise indicated in the applicable
Prospectus Supplement, interest on Debt Securities that are in the form of
certificated securities will be paid by check mailed to the holder at such
person's address as it appears in the register for the Debt Securities
maintained by the Debt Trustee; however, a holder of $10,000,000 or more Debt
Securities having the same interest payment dates will be entitled to receive
payments of interest by wire transfer, if appropriate wire transfer instructions
have been received by the Debt Trustee on or prior to the applicable record
date. (Section 2.12.) Unless otherwise indicated in the applicable Prospectus
Supplement, the principal of, and interest at maturity and premium, if any, on
Debt Securities in the form of certificated securities will be payable in
immediately available funds at the office of the Debt Trustee. (Section 2.12.)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any Debt Security which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the holder
of such Debt Security will thereafter look only to the Company for payment
thereof. (Section 4.04.)
EVENTS OF DEFAULT
The following constitute events of default under the Debt Indenture:
- default in the payment of principal of and premium, if any, on any Debt
Security when due and payable whether at the stated maturity thereof, upon
redemption thereof (provided that such redemption is not conditioned upon
the deposit of sufficient moneys for such redemption) or upon declaration
of acceleration or otherwise;
- default in the payment of interest on any Debt Security when due which
continues for 30 days;
- default in the performance or breach of any other covenant or warranty of
the Company in the Debt Indenture and the continuation thereof for 60 days
after written notice to the Company as provided in the Debt Indenture; and
- certain events of bankruptcy, insolvency or reorganization of the Company.
(Section 7.01.)
If an event of default occurs and is continuing, either the Debt Trustee or
the holders of a majority in principal amount of the outstanding Debt Securities
may declare the principal amount of all Debt Securities to be due and payable
immediately. At any time after an acceleration of the Debt Securities has been
declared, but before a judgment or decree of the immediate payment of the
principal amount of the Debt Securities has been obtained, if the Company pays
or deposits with the Debt Trustee a sum sufficient to pay all matured
installments of interest and the principal and any premium which has become due
otherwise than by acceleration and all defaults shall have been cured or waived,
then such payment or deposit will cause an automatic rescission and annulment of
the acceleration of the Debt Securities. (Section 7.01.)
The Debt Trustee generally will be under no obligation to exercise any of
its rights or powers under the Debt Indenture at the request or direction of any
of the holders unless such holders have offered acceptable indemnity to the Debt
Trustee. (Section 9.02.) The holders of a majority in principal amount of the
outstanding Debt Securities generally will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debt Trustee, or of exercising any trust or
18
<PAGE>
power conferred on the Debt Trustee, with respect to the Debt Securities.
(Section 7.07.) Each holder of any Debt Security has the right to institute a
proceeding with respect to the Debt Indenture, but such right is subject to
certain conditions precedent specified in the Debt Indenture. (Section 7.07.)
The Debt Indenture provides that the Debt Trustee, within 90 days after the
occurrence of a default with respect to the Debt Securities, is required to give
the holders of the Debt Securities notice of such default, unless cured or
waived, but, except in the case of default in the payment of principal of, or
premium, if any, or interest on any Debt Securities, the Debt Trustee may
withhold such notice if it determines in good faith that it is in the interest
of such holders to do so. (Section 7.08.) The Company is required to deliver to
the Debt Trustee each year a certificate as to whether or not, to the knowledge
of the officers signing such certificate, the Company is in compliance with the
conditions and covenants under the Debt Indenture. (Section 5.05.)
MODIFICATION
The Company and the Debt Trustee may modify and amend the Debt Indenture
with the consent of the holders of a majority in principal amount of the
outstanding Debt Securities affected thereby, provided that no such modification
or amendment may, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) change the stated maturity of any installment of
principal of, or interest on, any Debt Security or any premium payable on the
redemption thereof, or change the redemption price; (b) reduce the principal
amount of, or the interest or premium payable on, any Debt Security or reduce
the amount of principal that could be declared due and payable prior to the
stated maturity; (c) change the coin or currency of any payment of principal of,
or any premium or interest on, any Debt Security; (d) impair the right of a
holder to institute suit for the enforcement of any payment on or with respect
to any Debt Security; (e) reduce the percentage in principal amount of
outstanding Debt Securities, the consent of the holders of which is required to
modify or amend the Debt Indenture; or (f) modify the foregoing requirements or
reduce the percentage of outstanding Debt Securities necessary to waive any past
default to less than a majority. The Company and the Debt Trustee may modify and
amend the Debt Indenture without the consent of the holders (a) to add to the
covenants of the Company for the benefit of the holders or to surrender a right
conferred on the Company in the Debt Indenture; (b) to add security for the Debt
Securities; or (c) to make certain other modifications, generally of a
ministerial or immaterial nature. (Sections 12.01 and 12.02.)
DEFEASANCE AND DISCHARGE
We may be discharged from all obligations in respect to the Debt Securities
and the Debt Indenture (except for certain obligations such as obligations to
register the transfer or exchange of Debt Securities, replace stolen, lost or
mutilated Debt Securities and maintain paying agencies) if we irrevocably
deposit with the Debt Trustee, in trust for the benefit of holders of Debt
Securities, money or United States government obligations (or any combination
thereof) which will provide enough money to make all payments of principal of,
and any premium and interest on, the Debt Securities on the dates such payments
are due. In order to discharge such obligations, we must deliver to the Debt
Trustee an opinion of counsel to the effect that the holders of the Debt
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or discharge of the Debt Indenture. Upon
any discharge of our obligations as described above, the holders of Debt
Securities must look only to such trust fund, and not us, for payments on the
Debt Securities. (Section 4.01.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We will not merge into any other corporation or sell or otherwise transfer
all or substantially all our assets unless the successor or transferee
corporation assumes by supplemental indenture our obligations to pay the
principal and premium and interest on all the Debt Securities and our obligation
to perform every covenant of the Debt Indenture to be performed or observed by
the Company. Upon any such merger, sale
19
<PAGE>
or transfer of all or substantially all of the assets of the Company, the
successor or transferee corporation will succeed to, and be substituted for, and
may exercise every right and power of, the Company under the Debt Indenture with
the same effect as if such successor corporation had been named as the Company
therein and the Company will be released from all obligations under the Debt
Indenture. The Debt Indenture defines all or substantially all of the assets of
the Company as being 50% or more of the total assets of the Company as shown on
the balance sheet of the Company as of the end of the prior year and
specifically permits any such sale, transfer or conveyance during a calendar
year of less than 50% of total assets without the consent of the holders of the
Debt Securities. (Sections 11.01 and 11.02.)
RESIGNATION OR REMOVAL OF DEBT TRUSTEE
The Debt Trustee may resign at any time by notifying the Company in writing
and specifying the day upon which the resignation is to take effect. Such
resignation will not take effect, however, until a successor trustee has been
appointed. (Section 8.10.)
The holders of a majority in principal amount of the outstanding Debt
Securities may remove the Debt Trustee at any time. In addition, so long as no
event of default or event which, with the giving of notice or lapse of time or
both, would become an event of default has occurred and is continuing, we may
remove the Debt Trustee upon notice to the holder of each Debt Security
outstanding, and appointment of a successor Debt Trustee. (Section 8.10.)
CONCERNING THE DEBT TRUSTEE
Norwest Bank Minnesota, National Association is the Debt Trustee. We
maintain banking relationships with the Debt Trustee in the ordinary course of
business. The Debt Trustee also acts as trustee for certain of our pollution
control and resource recovery bonds and will also act as Senior Note Trustee.
BOOK-ENTRY SYSTEM
Each series of Securities may be issued in the form of one or more Global
Securities representing all or part of such series of Securities. This means
that we will not issue certificates for such series of Securities to the
holders. Instead a Global Security representing such series will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), or its successor as
depository (the "Depository") and registered in the name of the Depository or a
nominee of the Depository.
The Depository will keep a computerized record of its participants (for
example, your broker) whose clients have purchased the Securities. Unless it is
exchanged in whole or in part for a certificated Security, a Global Security may
not be transferred, except that the Depository, its nominees and their
successors may transfer a Global Security as a whole to one another.
Beneficial interests in Global Securities will be shown on, and transfers of
interests will be made only through, records maintained by the Depository and
its participants. The laws of some jurisdictions require that certain purchasers
take physical delivery of securities in definitive form. These laws may impair
the ability to transfer beneficial interests in a Global Security.
We will wire principal, interest and any premium payments to the Depository
or its nominee. We and the trustee will treat the Depository or its nominee as
the owner of the Global Security for all purposes, including any notices and
voting. Accordingly, we, the trustee and any paying agent will have no direct
responsibility or liability to pay amounts due on a Global Security to owners of
beneficial interests in a Global Security.
Unless otherwise specified in the Prospectus Supplement, DTC will act as
Depository for those Securities issued as Global Securities. The Securities will
be registered in the name of Cede & Co. (DTC's partnership nominee).
20
<PAGE>
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts. This
eliminates the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a direct Participant, either directly or
indirectly. The Rules that apply to DTC and its Participants are on file with
the SEC.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit Participants' accounts on the payment date according to
their respective holdings of beneficial interests in the Global Security as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Participants whose accounts are credited with
Securities on a record date, by using an omnibus proxy. Payments by Participants
to owners of beneficial interests in a Global Security, and voting by
Participants, will be governed by the customary practices between the
Participants and owners of beneficial interests, as is the case with securities
held for the account of customers registered in "street name." However, payments
will be the responsibility of the Participants and not our responsibility or
that of DTC or the trustee.
Securities represented by a Global Security will be exchangeable for
certificated notes with the same terms in authorized denominations only if:
(a) DTC notifies us that it is unwilling or unable to continue as Depository
or if DTC ceases to be a clearing agency registered under applicable law
and a successor Depository is not appointed by us within 90 days; or
(b) we determine not to require all of the Securities of a series to be
represented by a Global Security and notify the trustee of our decision.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from DTC, and the Company and any underwriters, dealers or
agents take no responsibility for the accuracy thereof.
Any underwriters, dealers or agents of any Securities may be Direct
Participants of DTC.
LEGAL OPINIONS
Legal opinions relating to the Securities 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 and General Counsel of the Company and is the
beneficial owner of 12,173.507 shares of the Company's Common Stock. 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.
21
<PAGE>
EXPERTS
The consolidated financial statements of the Company as of December 31, 1997
and 1996 and for each of the three years in the period ended December 31, 1997
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, have been so incorporated in
reliance upon the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
PLAN OF DISTRIBUTION
The Company intends to sell the Securities to or through underwriters or
dealers, and may also sell the Securities directly to other purchasers or
through agents, as described in the Prospectus Supplement relating to an issue
of Securities.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions, or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933 (the "1933 Act"). Any such person who may be deemed to be
an underwriter will be identified, and any such compensation received from the
Company will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the 1933 Act.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus and, if given or made, such
information or representation must not be relied upon as having been authorized.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any of the securities offered hereby in any jurisdiction to any
person to whom it is unlawful to make such offer in such jurisdiction. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein is correct as
of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
22
<PAGE>
NORTHERN STATES POWER COMPANY
(a Minnesota Corporation)
FIRST MORTGAGE BONDS
SENIOR NOTES
DEBT SECURITIES
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
ABOUT THIS PROSPECTUS...................................................................................... 2
WHERE YOU CAN FIND MORE INFORMATION........................................................................ 2
USE OF PROCEEDS............................................................................................ 4
NSP'S RATIO OF EARNINGS TO FIXED CHARGES................................................................... 4
SECURITIES................................................................................................. 4
DESCRIPTION OF NEW BONDS................................................................................... 5
DESCRIPTION OF SENIOR NOTES................................................................................ 12
DESCRIPTION OF DEBT SECURITIES............................................................................. 16
BOOK-ENTRY SYSTEM.......................................................................................... 20
LEGAL OPINIONS............................................................................................. 21
EXPERTS.................................................................................................... 22
PLAN OF DISTRIBUTION....................................................................................... 22
</TABLE>
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<PAGE>
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............... $ 111,200
Fees of rating agencies......................................... 120,000
Printing and engraving.......................................... 75,000
Accounting services............................................. 50,000
Trustee's charges............................................... 75,000
Mortgage registration tax....................................... 775,000
Expenses and counsel fees for qualification or registration of
the Securities under state securities laws.................... 10,000
Miscellaneous, including traveling, telephone, copying,
shipping, and other out-of-pocket expenses.................... 33,800
---------
Total....................................................... $1,250,000
---------
---------
All items are estimated except the first.
</TABLE>
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> <C> <C> <C> <C> <C> <C>
(a) No. 2-5290. (h) No. 2-14156. (o) No. 2-27117. (v) No. 2-46434.
(b) No. 2-5924. (i) No. 2-15220. (p) No. 2-28447. (w) No. 2-53235.
(c) No. 2-7549. (j) No. 2-18355. (q) No. 2-34250. (x) No. 2-71259.
(d) No. 2-8047. (k) No. 2-20282. (r) No. 2-36693. (y) No. 2-83364.
(e) No. 2-9631. (1) No. 2-21601. (s) No. 2-39144. (z) No. 2-97667.
(f) No. 2-12216. (m) No. 2-22476. (t) No. 2-39815.
(g) No. 2-13463. (n) No. 2-26338. (u) No. 2-42598.
</TABLE>
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<PAGE>
ITEM 16. EXHIBITS. (CONTINUED)
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<S> <C>
1.01 Form of Underwriting Agreement for the New Bonds.
1.02 Form of Underwriting Agreement for the Senior Notes.
1.03 Form of Underwriting Agreement for the Debt Securities.
*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)
</TABLE>
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<PAGE>
ITEM 16. EXHIBITS. (CONTINUED)
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<S> <C>
*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)
*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.
</TABLE>
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<PAGE>
ITEM 16. EXHIBITS. (CONTINUED)
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<S> <C>
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.
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 Copy of Supplemental Trust Indenture, dated April 1, 1997, being a supplemental instrument to
Exhibit 4.01A hereto, filed as Exhibit 4.47 to the Company's Annual Report on Form 10-K (File No.
1-3034) for the year ended December 31, 1997, and incorporated herein by reference.
4.01VV Copy of Supplemental Trust Indenture, dated March 1, 1998, 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 11, 1998, and incorporated herein by reference.
4.01WW Form of Supplemental Trust Indenture, for each series of New Bonds, being a supplemental
instrument to Exhibit 4.01A hereto.
4.01XX Form of Senior Note Indenture from the Company to Norwest Bank Minnesota, National Association.
</TABLE>
II-4
<PAGE>
ITEM 16. EXHIBITS. (CONTINUED)
<TABLE>
<CAPTION>
EXHIBITS
- ---------------
<S> <C>
4.01YY Form of Debt Securities Indenture from the Company to Norwest Bank Minnesota, National
Association.
5.01 Opinion of Gary R. Johnson as to legality of the New Bonds.
12.01 NSP statement of Computation of ratio of earnings to fixed charges.
23.01 Independent Accountants' Consent.
23.02 Legal Counsel's Consent.
24.01 Powers 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.
25.02 Form T-1 Statement of eligibility of Norwest Bank Minnesota, National Association to act as
Trustee under the Senior Note Indenture relating to the Senior Notes.
25.03 Form T-1 Statement of eligibility of Norwest Bank Minnesota, National Association to act as
Trustee under the Indenture relating to the Debt Securities.
</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 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
II-5
<PAGE>
ITEM 17. UNDERTAKINGS. (CONTINUED)
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-6
<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 20th day
of November, 1998.
<TABLE>
<S> <C> <C>
NORTHERN STATES POWER COMPANY
By: /s/
-----------------------------------------
E.J. McIntyre VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
</TABLE>
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>
*/s/
- ------------------------------ Principal Executive November 20, 1998
James J. Howard Officer and Director
*/s/
- ------------------------------ Principal Financial November 20, 1998
Edward J. McIntyre Officer
*/s/
- ------------------------------ Principal Accounting November 20, 1998
Roger D. Sandeen Officer
*/s/
- ------------------------------ Director November 20, 1998
H. Lyman Bretting
*/s/
- ------------------------------ Director November 20, 1998
David A. Christensen
*/s/
- ------------------------------ Director November 20, 1998
W. John Driscoll
*/s/
- ------------------------------ Director November 20, 1998
Giannantonio Ferrari
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<S> <C> <C>
*/s/
- ------------------------------ Director November 20, 1998
Richard M. Kovacevich
*/s/
- ------------------------------ Director November 20, 1998
Douglas W. Leatherdale
*/s/
- ------------------------------ Director November 20, 1998
Margaret R. Preska
*/s/
- ------------------------------ Director November 20, 1998
A. Patricia Sampson
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/
-------------------------
E.J. McIntyre
(ATTORNEY-IN-FACT)
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
METHOD OF EXHIBIT
FILING NO. DESCRIPTION
- ---------- ---------- ------------------------------------------------------------------------------------------
<C> <S> <C>
DT 1.01 Form of Underwriting Agreement for the New Bonds.
DT 1.02 Form of Underwriting Agreement for the Senior Note.
DT 1.03 Form of Underwriting Agreement for the Debt Securities.
DT 4.01WW Form of Supplemental Trust Indenture, for each series of New Bonds, being a supplemental
instrument to Exhibit 4.01A hereto.
DT 4.01XX Form of Senior Note Indenture from the Company to Norwest Bank Minnesota, National
Association.
DT 4.01YY Form of Debt Securities Indenture from the Company to Norwest Bank Minnesota, National
Association.
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 23.01 Independent Accountants' Consent.
DT 23.02 Legal Counsel's Consent.
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.
DT 25.02 Form T-1 Statement of eligibility of Norwest Bank Minnesota, National Association to act
as Trustee under the Senior Note Indenture relating to the Senior Notes.
DT 25.03 Form T-1 Statement of eligibility of Norwest Bank Minnesota, National Association to act
as Trustee under the Indenture relating to the Debt Securities.
</TABLE>
- ------------------------
DT - Filed electronically with this direct transmission.
<PAGE>
Exhibit 1.01
Form of November 20, 1998
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,
Senior Notes and Debt Securities, which registration statement has become
effective. Such registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement (which date
is set forth in Schedule I hereto). Any such amendment or supplement was filed
with the Commission and any such amendment has become effective. The Company
will file with the
1
<PAGE>
Commission a prospectus supplement (the "Prospectus Supplement") relating to the
Bonds pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such
registration statement and prospectus, any such amendment or supplement and all
documents incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement have been delivered to you and copies
of the Prospectus Supplement will be delivered to you promptly after it is filed
with the Commission. Such registration statement, as amended prior to the date
of this Agreement, and such prospectus, as amended and supplemented prior to the
date of this Agreement and as supplemented by the Prospectus Supplement, are
hereinafter called the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the date of this Agreement and, if the Company files any document pursuant to
the Exchange Act after the date of this Agreement and prior to the termination
of the offering of the Bonds by the Underwriters, which documents are deemed to
be incorporated by reference into the Prospectus, the term "Prospectus" shall
refer also to said prospectus as supplemented by the documents so filed from and
after the time said documents are filed with the Commission. There are no
contracts or documents of the Company or any of its subsidiaries that are
required to be filed as exhibits to the Registration Statement or any documents
incorporated by reference therein by the Act, the Exchange Act or the rules and
regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to (A) that part of the Registration Statement which shall constitute the
Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the
Trustee and the trustees for the Senior Notes and Debt Securities or (B) the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and any documents so filed and incorporated by reference subsequent
to the date of this Agreement will, when they are filed with the Commission,
conform in all material respects to the requirements of the Exchange Act, and
2
<PAGE>
the rules and regulations of the Commission thereunder; and none of such
documents include or will include any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading.
(d) PricewaterhouseCoopers LLP which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods specified, and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota with due
corporate authority to carry on the business in which it is engaged and to own
and operate the properties used by it in such business, as described in the
Prospectus; the Company is qualified to do business as a foreign corporation and
is in good standing under the laws of the States of North Dakota and South
Dakota; and the Company is not required by the nature of its business to be
licensed or qualified as a foreign corporation in any other state or
jurisdiction; and, except as set forth in the Prospectus Supplement, the Company
has all material licenses and approvals required at the date hereof to conduct
its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary
3
<PAGE>
course of business, which are material to the Company and its subsidiaries, and
there has not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Bonds, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Bonds and the
Indenture will conflict with, or result in the breach of, any of the terms,
provisions or conditions of the Restated Articles of Incorporation, as amended,
or by-laws of the Company, or of any contract, agreement or instrument to which
the Company is a party or in which the Company has a beneficial interest or by
which the Company is bound or of any order, rule or regulation applicable to the
Company of any court or of any federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company or over its properties.
(j) The Bonds have been duly authorized for issuance and sale pursuant
to this Agreement and, when executed and authenticated in accordance with the
Indenture and delivered and paid for as provided herein, will be duly issued and
will constitute valid and binding obligations of the Company enforceable in
accordance with their terms, except as limited by bankruptcy, insolvency and
other laws affecting enforcement of creditors' rights, and will be entitled to
the benefits of the Indenture which will be substantially in the form heretofore
delivered to you.
(k) The Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and binding obligation of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Bonds,
and no other approval of any regulatory public body, state or federal, is, or
will be at the Closing Date (as hereinafter defined), necessary in connection
with the issuance and sale of the Bonds pursuant to this Agreement, other than
approvals that may be required under state securities laws.
(m) The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with the
terms thereof), subject only to taxes and assessments not yet delinquent; the
lien of the Indenture; as to parts of the Company's property, certain easements,
conditions, restrictions, leases, and similar encumbrances which do not affect
the Company's use of such property in the usual course of its business, and
certain minor defects in titles which are not material, and defects in titles to
certain properties which are not essential to
4
<PAGE>
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
5
<PAGE>
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form. Any Bonds delivered in temporary
form will be exchangeable without charge for Bonds in definitive form. The Bonds
will be registered in the names of the Underwriters and in the principal amounts
set forth in Schedule II hereto except that if the Company receives a written
request from the Representatives prior to noon on the second business day
preceding the Closing Date giving the names in which the Bonds are to be
registered and the principal amounts thereof (which shall in each case be a
multiple of $1,000) the Company will deliver the Bonds so registered. The Bonds
will be made available to the Representatives for checking in New York, New
York, not later than 2:00 p.m., New York City time, on the business day
preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Bonds is required to be delivered
under the Act, the Company will promptly advise the Representatives (i) when any
amendment to the Registration Statement shall have become effective, (ii) when
any subsequent supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) has been filed, (iii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings for
that purpose. The Company will not file any amendment of the Registration
Statement or supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) unless the Company has furnished
to the Representatives a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Bonds is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will
6
<PAGE>
make a filing with the Commission pursuant to Section 13 or 14 of the Exchange
Act, which will correct such statement or omission or will effect such
compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not be
audited) of the Company, for a twelve-month period beginning after the date of
the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under
the Act, as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Act), which will
satisfy the provision of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Forms T -1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Bonds for sale under the
laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Bonds; provided that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) So long as the Bonds are outstanding, the Company will furnish (or
cause to be furnished) to each of the Representatives, upon request, copies of
(i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any first mortgage bonds of the Company (except under prior
contractual commitments which have been disclosed to you), without the prior
written consent of the Representatives, which consent shall not be unreasonably
withheld.
5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and
7
<PAGE>
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 and General Counsel 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
8
<PAGE>
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date; and
(ii) there has been no material adverse change in the condition of
the Company and its subsidiaries taken as a whole, financial or
otherwise, or in the earnings, affairs or business prospects of the
Company and its subsidiaries taken as a whole, whether or not arising
in the ordinary course of business, from that set forth or contemplated
by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants as
required by the Act and published rules and regulations of the Commission
thereunder, (ii) in their opinion, the consolidated financial statements and
supplemental schedules incorporated by reference in the Registration Statement
and covered by their opinion filed with the Commission under Section 13 of the
Exchange Act comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations of the Commission thereunder, (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company and its consolidated
subsidiaries, a reading of the minutes of meetings of the Board of Directors,
committees thereof, and of the Shareholders, of the Company and its subsidiaries
since the date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial accounting matters and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such limited review and procedures nothing came to their attention
that caused them to believe that: (a) any material modifications should be made
to any unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus for them
to be in conformity with generally accepted accounting principles or any
unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations of the Commission
applicable to Form 10-Q; (b) with respect to the period subsequent to the date
of the most recent financial statements included or incorporated by reference in
the Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the capital stock of
the Company, increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company and its consolidated subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated by reference in the
Prospectus to such specified date there were any decreases, as compared with the
corresponding period in the preceding year, in operating revenues, operating
income, net income, or earnings per share of Common Stock of the Company and its
subsidiaries, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
9
<PAGE>
explanation is not deemed necessary by the Representatives; and (iv) they have
carried out specified procedures performed for the purpose of comparing certain
specified financial information and percentages (which is limited to financial
information derived from general accounting records of the Company) included or
incorporated by reference in the Registration Statement and Prospectus with
indicated amounts in the financial statements or accounting records of the
Company and (excluding any questions of legal interpretation) have found such
information and percentages to be in agreement with the relevant accounting and
financial information of the Company referred to in such letter in the
description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Bonds on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact
10
<PAGE>
which in the opinion of counsel for the Underwriters is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the Company
to sell and deliver the Bonds are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, threatened.
(b) The order of the Minnesota Public Utilities Commission
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Bonds.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue
11
<PAGE>
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Bonds as originally filed or
in any amendment thereof, or in the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and agrees to reimburse
each such indemnified party for any legal or other expenses as reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damages, liability or action; provided that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
therein and provided further that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Bonds which are the subject thereof if such person was not sent or given a
copy of the Prospectus (but without the documents incorporated by reference
therein) at or prior to the confirmation of the sale of such Bonds to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such prospectus was
corrected in the Prospectus, provided that the Company shall have delivered the
Prospectus, in a timely manner and in sufficient quantities to permit such
delivery by the Underwriters. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if
12
<PAGE>
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party, or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel and one local counsel, approved by the Representatives in the
case of subparagraph (a), representing the indemnified parties under
subparagraphs (a) or (b), as the case may be, who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Bonds. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the
13
<PAGE>
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Bonds underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. Default by an Underwriter. (a) If any Underwriter shall default in
its obligation to purchase the Bonds which it has agreed to purchase hereunder
(in this Section called the "Unpurchased Bonds"), the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Unpurchased Bonds on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Unpurchased Bonds, then the Company shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to purchase
such Unpurchased Bonds on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Unpurchased Bonds, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Bonds, the Representatives or the Company shall have the right to postpone the
Closing Date for such Unpurchased Bonds for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Unpurchased Bonds.
14
<PAGE>
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, as referred
to in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Unpurchased Bonds of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Bonds, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) if
a banking moratorium shall have been declared either by Federal, Minnesota or
New York State authorities, (iii) if trading in any securities of the Company
shall have been suspended or halted, or (iv) if there shall have occurred any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a war or national emergency or any other
calamity or crisis the effect of which on the financial markets in the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Bonds on the terms and in the manner contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Bonds. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
15
<PAGE>
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.
16
<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.
17
<PAGE>
SCHEDULE I
Underwriting Agreement dated
------------
Registration Statement No. 333-
------
Representatives and Addresses:
Bonds:
Designation: % First Mortgage Bonds, Series due
---- ------
Principal Amount: $
----------
Supplemental Indenture dated as of
--------
Date of Maturity:
-----------
Interest Rate: % per annum, payable and of each year,
----- ------ -----
commencing
--------------
Purchase Price: % of the principal amount thereof, plus accrued
-----
interest from to the date of payment and delivery.
---------
Public Offering Price: % of the principal amount thereof, plus accrued
-----
interest from to the date of payment and
------------
delivery.
Payment to be made in federal (same day) funds. Yes No
--------- ---------
Closing Date and Location:
Office for Delivery of Bonds:
Office for Payment of Bonds:
Office for Checking of Bonds:
18
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
<S> <C>
Name Amount
- ---- ------------
..................................................................... $
.....................................................................
.....................................................................
.....................................................................
.....................................................................
.....................................................................
------------
Total .....................................................................
------------
------------
</TABLE>
19
<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;
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3. Each Significant Subsidiary, as defined in the Agreement,
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
it owns or leases substantial properties or in which the conduct of its
business requires such qualification; all of the issued and outstanding
capital stock of each subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of any pledge, lien, encumbrance,
claim or equity;
4. The Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding obligation of the
Company, except to the extent that the provisions for indemnities may
be held to be unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate
corporate proceedings on the part of the Company, has been duly
executed and delivered and constitutes a legal, valid, and binding
instrument enforceable in accordance with its terms, except as the
provisions of the United States Bankruptcy Code may affect the validity
of the lien thereof with respect to proceeds, products, rents, issues,
or profits realized, and additional property acquired, after the
commencement of a case under said Code, and except as enforcement of
the provisions of the Indenture may be limited by the laws of the
states of Minnesota, North Dakota, and South Dakota (where property
covered thereby is located) affecting the remedies for the enforcement
of the security provided for in the Indenture (which state laws do not
in my opinion make such remedies inadequate for realization of the
benefits of such security) or except as the same may be limited by
bankruptcy or insolvency laws or other similar laws;
6. The issuance of the Bonds in accordance with the terms of
the Indenture and the sale and delivery thereof pursuant to the
provisions of the Agreement have been duly authorized by the Company;
the statements made under the caption "Description of New Bonds" in the
Prospectus, insofar as they purport to summarize provisions of
documents specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3; the Bonds are
in due legal form, constitute legal, valid, and binding obligations of
the Company, and (subject to the qualifications expressed in paragraph
5 above with respect to the validity and enforceability of certain of
the provisions of the Indenture) and enforceable in accordance with
their terms;
7. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof and compliance by
the Company with all the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or
by which it is bound, or the Restated Articles of Incorporation, as
amended, or by-laws of the Company or, to the best of my knowledge, any
order, rule or regulation applicable to the
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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;
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13. The Bonds are secured by and entitled to the benefits of
the Indenture equally and ratably, except as to sinking fund
provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien of the Indenture on
all of the real and fixed properties, leasehold rights, franchises, and
permits now owned by the Company, subject only to the items set forth
in the preceding paragraph 12 of this opinion;
14. The Bonds also are secured equally and ratably, except as
to sinking fund provisions, with all other bonds duly issued and
outstanding under the Indenture by a valid and direct first mortgage
lien (subject to permitted liens as defined in the Indenture) on all
real and fixed property hereafter acquired by the Company in conformity
with the terms of the Indenture, except as the United States Bankruptcy
Code may affect the validity of the lien of such Indenture on property
acquired after the commencement of a case under such Act, except as to
the prior lien of the Trustee under the Indenture in certain events
specified therein, and except as otherwise provided in the Indenture in
the case of consolidation, merger, or transfer of all the mortgaged and
pledged property as an entirety;
15. The Company has all necessary power under statutory
provisions, franchises (which expire at various dates), or permits to
serve the customers in the jurisdictions where it provided electric and
gas service, except in certain instances that are not material to the
Company; and
16. All statements contained in the Registration Statement and
Prospectus under the caption "Description of New Bonds" purporting to
set forth the opinion of counsel or purporting to be based upon the
opinion of counsel correctly set forth my opinion on said respective
matters.
These opinions do not cover titles to easements for water flowage
purposes or rights of way for electric and gas transmission and distribution
facilities, steam mains, and telephone lines. However, the Company has the power
of eminent domain in the states in which it operates.
In the course of my participation in the preparation of the
Registration Statement and Prospectus I made investigations as to the accuracy
of certain of the statements of fact contained therein, I discussed other
matters with officers, employees, and representatives of the Company, and I
examined various corporate records and data. While I do not pass upon or assume
responsibility for, and shall not be deemed to have independently verified, the
accuracy and completeness of the statements contained in the Registration
Statement or Prospectus (except as to matters set forth in paragraphs 9 and 16
above) nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus as of the date of the Agreement or at the date hereof
contained an untrue statement of a material fact or omitted
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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 and General Counsel
Northern States Power Company
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Exhibit 1.02
Form of November 20, 1998
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
SENIOR NOTES
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 Senior Notes of the designation, with the terms and
in the aggregate principal amount specified in Schedule I hereto (the
"Notes") to be issued under its Indenture, dated as of ________ __, ____,
from the Company to Norwest Bank Minnesota, National Association, as trustee
(the "Senior Note Trustee"), as heretofore supplemented and amended by
supplemental trust indentures (such Indenture as so supplemented and amended
being hereinafter referred to as the "Senior Note Indenture"). Until the
Release Date (as defined in the Senior Notes Indenture), the Notes will be
secured as to payment of principal and interest by one or more series of
First Mortgage Bonds issued, pledged and delivered by the Company to the
Trustee. 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 Notes,
First Mortgage Bonds and Debt Securities, which registration statement has
become effective. Such registration statement and prospectus may have been
amended or supplemented from time to time prior to the date of this Agreement
(which date is set forth in Schedule I hereto). Any such amendment or supplement
was filed
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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 Notes 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 Notes by the
Underwriters, which documents are deemed to be incorporated by reference into
the Prospectus, the term "Prospectus" shall refer also to said prospectus as
supplemented by the documents so filed from and after the time said documents
are filed with the Commission. There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as exhibits to
the Registration Statement or any documents incorporated by reference therein by
the Act, the Exchange Act or the rules and regulations thereunder which have not
been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to (A) that part of the Registration Statement which shall constitute the
Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the
Senior Note Trustee and the trustees for the First Mortgage Bonds and Debt
Securities or (B) the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and any documents so filed and incorporated by reference subsequent
to the date of this Agreement will, when they are filed with
2
<PAGE>
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) PricewaterhouseCoopers LLP which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods specified, and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota with due
corporate authority to carry on the business in which it is engaged and to own
and operate the properties used by it in such business, as described in the
Prospectus; the Company is qualified to do business as a foreign corporation and
is in good standing under the laws of the States of North Dakota and South
Dakota; and the Company is not required by the nature of its business to be
licensed or qualified as a foreign corporation in any other state or
jurisdiction; and, except as set forth in the Prospectus Supplement, the Company
has all material licenses and approvals required at the date hereof to conduct
its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has incurred any
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<PAGE>
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 Senior
Note Indenture, the issuance and delivery of the Notes and the First Mortgage
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 Notes and the Senior Note 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 Notes have been duly authorized for issuance and sale pursuant
to this Agreement and, when executed and authenticated in accordance with the
Senior Note 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 Senior Note Indenture which will be
substantially in the form heretofore delivered to you. The First Mortgage Bonds
which are delivered to the Senior Note Trustee as security for the payment of
principal and interest on the Notes, have been duly authorized for issuance and
sale pursuant to this Agreement and the Senior Note Indenture and, when executed
and authenticated in accordance with the First Mortgage Indenture and delivered
to the Senior Note Trustee, 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 First Mortgage
Indenture which will be substantially in the form heretofore delivered to you.
(k) The Senior Note Indenture, and, if prior to the Release Date, the
First Mortgage Indenture, have each 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 Senior Note Trustee and the
trustee for the First Mortgage Bonds, respectively, will each 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.
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<PAGE>
(l) The Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Notes and
the First Mortgage 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 Notes and the First
Mortgage 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 First Mortgage 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 First Mortgage Indenture; as to parts of the
Company's property, certain easements, conditions, restrictions, leases, and
similar encumbrances which do not affect the Company's use of such property in
the usual course of its business, and certain minor defects in titles which are
not material, and defects in titles to certain properties which are not
essential to the Company's business; and mechanics' lien claims being contested
or not of record or for the satisfaction or discharge of which adequate
provision has been made by the Company pursuant to the First Mortgage Indenture;
and any real property and buildings held under lease by the Company is 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.
5
<PAGE>
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 Notes set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Notes 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 Notes 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 Notes will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Notes
in definitive form, the Company reserves the right, as provided in the Senior
Note Indenture, to make delivery in temporary form. Any Notes delivered in
temporary form will be exchangeable without charge for Notes in definitive form.
The Notes will be registered in the names of the Underwriters and in the
principal amounts set forth in Schedule II hereto except that if the Company
receives a written request from the Representatives prior to noon on the second
business day preceding the Closing Date giving the names in which the Notes 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 Notes so registered. The
Notes will be made available to the Representatives for checking in New York,
New York, not later than 2:00 p.m., New York City time, on the business day
preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424(b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Notes 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
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<PAGE>
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 Notes 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 Forms T-1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Notes 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 Notes; 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 Notes 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
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the Company and (ii) all reports and financial statements filed with the
Commission or any national securities exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any debt securities of the Company (except under prior contractual
commitments which have been disclosed to you), without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld.
5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Notes 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 Notes for investment by institutional
investors and the rating of the Notes, 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 Notes 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 Notes 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 and General Counsel 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
8
<PAGE>
with respect to the incorporation of the Company, this Agreement, the
validity of the Senior Note Indenture, the Notes, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this Section
6 and to the further effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
and
(ii) there has been no material adverse change in the
condition of the Company and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, from that set forth
or contemplated by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received 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
9
<PAGE>
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; and (iv) they have carried out specified
procedures performed for the purpose of comparing certain specified financial
information and percentages (which is limited to financial information derived
from general accounting records of the Company) included or incorporated by
reference in the Registration Statement and Prospectus with indicated amounts in
the financial statements or accounting records of the Company and (excluding any
questions of legal interpretation) have found such information and percentages
to be in agreement with the relevant accounting and financial information of the
Company referred to in such letter in the description of the procedures
performed by them.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Notes 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
10
<PAGE>
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 Notes 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) If the Notes are issued prior to the Release Date, the Company
shall have delivered to the Senior Note Trustee, as security for the payment of
the principal and interest on the Notes, a series of First Mortgage Bonds (the
"Bonds") in the same aggregate principal amount and with the same stated rate or
rates of interest (or interest calculated in the same manner), payment dates,
maturity dates and redemption provisions as the Notes they serve. The Bonds will
be issued by the Company under its Trust Indenture dated as of February 1, 1937
between the Company and Harris Trust and Savings Bank, as trustee (the "First
Mortgage Trustee"), as heretofore amended and supplemented and as to be further
amended and supplemented by a Supplemental Indenture or Supplemental Trust
Indentures making the series in which the Bonds are to be issued. As used
herein, the term "First Mortgage Indenture," means such Trust Indenture dated as
of February 1, 1937, as so amended and supplemented.
(k) 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 Notes 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
11
<PAGE>
have been instituted or, to the knowledge of the Company or the
Representative, threatened.
(b) The order of the Minnesota Public Utilities Commission
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice of
such cancellation shall be given to the Underwriters in writing or by telephone
or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the Notes
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 Notes.
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 Notes
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 Notes 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 Notes 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
12
<PAGE>
Company shall have delivered the Prospectus, in a timely manner and in
sufficient quantities to permit such delivery by the Underwriters. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if 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
13
<PAGE>
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 Notes. 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 Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and
14
<PAGE>
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 Notes which it has agreed to purchase hereunder
(in this Section called the "Unpurchased Notes"), the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Unpurchased Notes 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 Notes, 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 Notes 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 Notes, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Notes, the Representatives or the Company shall have the right to postpone the
Closing Date for such Unpurchased Notes 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 Notes.
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Notes 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 Notes which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Notes,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Notes 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 Notes which
such Underwriter agreed to purchase hereunder) of the Unpurchased Notes 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 Notes of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Notes which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Notes, 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 Notes of a
15
<PAGE>
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 Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) if
a banking moratorium shall have been declared either by Federal, Minnesota or
New York State authorities, (iii) if trading in any securities of the Company
shall have been suspended or halted, or (iv) if there shall have occurred any
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a war or national emergency or any other
calamity or crisis the effect of which on the financial markets in the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Notes 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 Notes. 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.
16
<PAGE>
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.
17
<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.
18
<PAGE>
SCHEDULE I
Underwriting Agreement dated _____________
Registration Statement No. 333-______
Representatives and Addresses:
Notes:
Designation: ___% Senior Notes, Series due ______
Principal Amount: $__________
Supplemental Indenture dated as of _______
Date of Maturity: __________
Interest Rate: ___% per annum, payable ______ and _____ of each year,
commencing ____________
Purchase Price: __% of the principal amount thereof, plus accrued interest
from ________ to the date of payment and delivery.
Public Offering Price: __% of the principal amount thereof, plus accrued
interest from __________ to the date of payment and
delivery.
Payment to be made in federal (same day) funds. ____ Yes ____ No
Closing Date and Location:
Office for Delivery of Notes:
Office for Payment of Notes:
Office for Checking of Notes:
19
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Name Amount
- ---- ---------
<S> <C>
............................................................... $
...............................................................
...............................................................
...............................................................
...............................................................
...............................................................
---------
Total ...............................................................
---------
---------
</TABLE>
20
<PAGE>
Exhibit A
Form of opinion of Gary R. Johnson
Re: $ principal amount of Senior Notes, 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 Senior Notes, Series due , %
herein called the "Notes." In connection therewith I have participated in the
preparation of the proceedings for the issuance and sale of the Notes
including the Underwriting Agreement dated , between you and the Company
relating to your purchase of the Notes, herein called the "Agreement," and
have either participated in the preparation of or examined the (i) Indenture
dated ________ and the Supplemental Indenture dated as ________ __, ____,
creating the Notes, all from the Company to Norwest Bank Minnesota, National
Association, as trustee (the "Senior Note Trustee"), (which Indenture and
Supplemental Indenture are collectively referred to as the "Senior Note
Indenture") and (ii) Trust Indenture dated as of February 1, 1937 and the
Supplemental Trust Indenture 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 Indenture herein collectively called the "First Mortgage
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 Notes. 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 Senior Note Indenture and issue and sell the
Notes;
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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 Senior Note Indenture has been duly authorized by
appropriate corporate proceedings on the part of the Company, has been
duly executed and delivered and constitutes a legal, valid, and binding
instrument enforceable in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency and other
laws affecting enforcement of creditors' rights;
6. The issuance of the Notes and the Bonds in accordance with
the terms of the Senior Note Indenture and the sale and delivery
thereof pursuant to the provisions of the Agreement have been duly
authorized by the Company; the statements made under the caption
"Description of Senior Notes" and "Description of New Bonds" in the
Prospectus, insofar as they purport to summarize provisions of
documents specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3; the Notes and
the Bonds are in due legal form, constitute legal, valid, and binding
obligations of the Company, (subject to the qualifications expressed in
paragraph 5 and 11 herein with respect to the validity and
enforceability of certain of the provisions of the Senior Note
Indenture and First Mortgage Indenture) are enforceable in accordance
with their terms;
7. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof and compliance by
the Company with all the terms and provisions of the Senior Note
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;
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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
Notes; the Senior Note Indenture and the First Mortgage Indenture have
each 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 Notes 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 First Mortgage 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 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 First Mortgage Indenture may be limited by the laws of the states
of Minnesota, North Dakota, and South Dakota (where property covered
thereby is located) affecting the remedies for the enforcement of the
security provided for in the Indenture (which state laws do not in my
opinion make such remedies inadequate for realization of the benefits
of such security) or except as the same may be limited by bankruptcy or
insolvency laws or other similar laws;
12. 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 file din all places necessary to
effectuate the lien of the Indenture;
13. The Company has good and valid title to all real and fixed
property and leasehold rights described or enumerated in the First
Mortgage Indenture (except such properties as have been released from
the lien thereof in accordance with the terms
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thereof), subject only to: (a) taxes and assessments not yet
delinquent; (b) the lien of the First Mortgage 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
First Mortgage Indenture;
14. The Bonds are secured by and entitled to the benefits of
the First Mortgage Indenture equally and ratably, except as to the
sinking fund provisions, with all other bonds duly issued and
outstanding under the First Mortgage Indenture by a valid and direct
first mortgage lien of the First Mortgage 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 13 of this opinion;
15. The Bonds also are secured equally and ratably, except as
to the sinking fund provisions, with all other bonds duly issued and
outstanding under the First Mortgage Indenture by a valid and direct
first mortgage lien (subject to permitted liens as defined in the First
Mortgage Indenture) on all real and fixed property hereafter acquired
by the Company in conformity with the terms of the First Mortgage
Indenture, except as the United States Bankruptcy Code may affect the
validity of the lien of such First Mortgage Indenture on property
acquired after the commencement of a case under such Act, except as to
the prior lien of the First Mortgage Trustee under the First Mortgage
Indenture in certain events specified therein, and except as otherwise
provided in the First Mortgage Indenture in the case of consolidation,
merger, or transfer of all the mortgaged and pledged property as an
entirety;
16. 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
17. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Senior Notes" 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
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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 17 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 13 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 and General Counsel
Northern States Power Company
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Exhibit 1.03
Form of November 20, 1998
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Minnesota corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), its Debt Securities of the designation, with the terms and
in the aggregate principal amount specified in Schedule I hereto (the "Debt
Securities") to be issued under its Indenture, dated as of _________, from the
Company to Norwest Bank Minnesota, National Association, as trustee (the "Debt
Trustee"), as heretofore supplemented and amended by supplemental indentures and
as to be further amended and supplemented by a supplemental indenture relating
to the Debt Securities (such Indenture as so supplemented and amended being
hereinafter referred to as the "Debt Indenture"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives," as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form, including a prospectus, for the registration under the Act of the Debt
Securities, Senior Notes and First Mortgage Bonds, which registration statement
has become effective. Such registration statement and prospectus may have been
amended or supplemented from time to time prior to the date of this Agreement
(which date is set forth in Schedule I hereto). Any such amendment or supplement
was filed with the Commission and any such amendment has become effective. The
Company will file
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with the Commission a prospectus supplement (the "Prospectus Supplement")
relating to the Debt Securities pursuant to Rule 424 and/or Rule 434 under the
Act. Copies of such registration statement and prospectus, any such amendment or
supplement and all documents incorporated by reference therein which were filed
with the Commission on or prior to the date of this Agreement have been
delivered to you and copies of the Prospectus Supplement will be delivered to
you promptly after it is filed with the Commission. Such registration statement,
as amended prior to the date of this Agreement, and such prospectus, as amended
and supplemented prior to the date of this Agreement and as supplemented by the
Prospectus Supplement, are hereinafter called the "Registration Statement" and
the "Prospectus", respectively. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement and, if the Company
files any document pursuant to the Exchange Act after the date of this Agreement
and prior to the termination of the offering of the Debt Securities by the
Underwriters, which documents are deemed to be incorporated by reference into
the Prospectus, the term "Prospectus" shall refer also to said prospectus as
supplemented by the documents so filed from and after the time said documents
are filed with the Commission. There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as exhibits to
the Registration Statement or any documents incorporated by reference therein by
the Act, the Exchange Act or the rules and regulations thereunder which have not
been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to (A) that part of the Registration Statement which shall constitute the
Statements of Eligibility (Forms T-1) under the Trust Indenture Act of the Debt
Trustee and the trustees for the Senior Notes and Debt Securities or (B) the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and
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<PAGE>
the rules and regulations of the Commission thereunder; and none of such
documents include or will include any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading.
(d) PricewaterhouseCoopers LLP which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the Registration
Statement or Prospectus fairly present the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in financial position for the periods specified, and have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota with due
corporate authority to carry on the business in which it is engaged and to own
and operate the properties used by it in such business, as described in the
Prospectus; the Company is qualified to do business as a foreign corporation and
is in good standing under the laws of the States of North Dakota and South
Dakota; and the Company is not required by the nature of its business to be
licensed or qualified as a foreign corporation in any other state or
jurisdiction; and, except as set forth in the Prospectus Supplement, the Company
has all material licenses and approvals required at the date hereof to conduct
its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary") has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through subsidiaries, is
owned free and clear of any pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus
Supplement; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus Supplement, neither the Company
nor any of its subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the ordinary
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course of business, which are material to the Company and its subsidiaries, and
there has not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Debt
Indenture, the issuance and delivery of the Debt Securities, the consummation of
the transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Debt Securities
and the Debt Indenture will conflict with, or result in the breach of, any of
the terms, provisions or conditions of the Restated Articles of Incorporation,
as amended, or by-laws of the Company, or of any contract, agreement or
instrument to which the Company is a party or in which the Company has a
beneficial interest or by which the Company is bound or of any order, rule or
regulation applicable to the Company of any court or of any federal or state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or over its properties.
(j) The Debt Securities have been duly authorized for issuance and sale
pursuant to this Agreement and, when executed and authenticated in accordance
with the Debt Indenture and delivered and paid for as provided herein, will be
duly issued and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency and other laws affecting enforcement of creditors' rights, and will
be entitled to the benefits of the Debt Indenture which will be substantially in
the form heretofore delivered to you.
(k) The Debt Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Debt Trustee, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors' rights.
(l) The Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Debt
Securities, and no other approval of any regulatory public body, state or
federal, is, or will be at the Closing Date (as hereinafter defined), necessary
in connection with the issuance and sale of the Debt Securities pursuant to this
Agreement, other than approvals that may be required under state securities
laws.
(m) The Company has good and valid title to all real and fixed property
and leasehold rights which are owned by it, subject only to taxes and
assessments not yet delinquent; the lien of First Mortgage Indenture; as to
parts of the Company's property, certain easements, conditions, restrictions,
leases, and similar encumbrances which do not affect the Company's use of such
property in the usual course of its business, and certain minor defects in
titles which are not material, and defects in titles to certain properties which
are not essential to the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or
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<PAGE>
discharge of which adequate provision has been made by the Company pursuant to
the First Mortgage Indenture; and any real property and buildings held under
lease by the Company is held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and
its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in compliance
with all terms and conditions of any such permits, licenses or approvals, except
where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the respective principal amounts of the Debt Securities set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than eight full business
days thereafter as the Representatives and the Company shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company (such date and time being herein called the "Closing Date"). Delivery of
the Debt Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the
5
<PAGE>
purchase price thereof to or upon the order of the Company by certified or
official bank check or checks payable in New York Clearing House (next day)
funds or, if so indicated in Schedule I hereto, in federal (same day) funds. The
Debt Securities will be delivered in definitive registered form except that, if
for any reason the Company is unable to deliver the Debt Securities in
definitive form, the Company reserves the right, as provided in the Debt
Indenture, to make delivery in temporary form. Any Debt Securities delivered in
temporary form will be exchangeable without charge for Debt Securities in
definitive form. The Debt Securities will be registered in the names of the
Underwriters and in the principal amounts set forth in Schedule II hereto except
that if the Company receives a written request from the Representatives prior to
noon on the second business day preceding the Closing Date giving the names in
which the Debt Securities are to be registered and the principal amounts thereof
(which shall in each case be a multiple of $1,000) the Company will deliver the
Debt Securities so registered. The Debt Securities will be made available to the
Representatives for checking in New York, New York, not later than 2:00 p.m.,
New York City time, on the business day preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Debt Securities is required to be
delivered under the Act, the Company will promptly advise the Representatives
(i) when any amendment to the Registration Statement shall have become
effective, (ii) when any subsequent supplement to the Prospectus (including
documents deemed to be incorporated by reference into the Prospectus) has been
filed, (iii) of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for any additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose. The Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(including documents deemed to be incorporated by reference into the Prospectus)
unless the Company has furnished to the Representatives a copy for your review
prior to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Debt Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will make a
filing with the Commission pursuant to Section 13 or 14 of the Exchange Act,
which will correct such statement or omission or will effect such compliance.
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<PAGE>
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not be
audited) of the Company, for a twelve-month period beginning after the date of
the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under
the Act, as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Act), which will
satisfy the provision of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Forms T-1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Debt Securities for sale
under the laws of such jurisdictions as the Representatives may designate and
will maintain such qualifications in effect so long as required for the
distribution of the Debt Securities; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(f) So long as the Debt Securities are outstanding, the Company will
furnish (or cause to be furnished) to each of the Representatives, upon request,
copies of (i) all reports to stockholders of the Company and (ii) all reports
and financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any debt securities of the Company (except under prior contractual
commitments which have been disclosed to you), without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld.
5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Debt
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
Prospectus (including all
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<PAGE>
documents incorporated by reference therein) and any amendments thereof or
supplements thereto, all costs and expenses (including fees and expenses of
counsel) incurred in connection with "blue sky" qualifications, the
determination of the legality of the Debt Securities for investment by
institutional investors and the rating of the Debt Securities, and all costs and
expenses of the printing and distribution of all documents in connection with
this underwriting. Except as provided in this Section 5 and Section 8 hereof,
the Underwriters will pay all their own costs and expenses, including the fees
of their counsel and any advertising expenses in connection with any offer they
may make.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Debt Securities shall be subject, in the
discretion of the Representatives, to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof and
the Closing Date, to the accuracy of the statements of Company officers made in
any certificates given pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) The Prospectus Supplement relating to the Debt Securities shall
have been filed with the Commission pursuant to Rule 424(b) and/or Rule 434
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of Gary R. Johnson, Vice President and General Counsel 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 Debt Indenture, the Debt
Securities, the Registration Statement, the Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this Section
6 and to the further effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the
8
<PAGE>
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date; and
(ii) there has been no material adverse change in the
condition of the Company and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, from that set forth
or contemplated by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants as
required by the Act and published rules and regulations of the Commission
thereunder, (ii) in their opinion, the consolidated financial statements and
supplemental schedules incorporated by reference in the Registration Statement
and covered by their opinion filed with the Commission under Section 13 of the
Exchange Act comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations of the Commission thereunder, (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company and its consolidated
subsidiaries, a reading of the minutes of meetings of the Board of Directors,
committees thereof, and of the Shareholders, of the Company and its subsidiaries
since the date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial accounting matters and
such other inquiries and procedures as may be specified in such letter, and on
the basis of such limited review and procedures nothing came to their attention
that caused them to believe that: (a) any material modifications should be made
to any unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus for them
to be in conformity with generally accepted accounting principles or any
unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations of the Commission
applicable to Form 10-Q; (b) with respect to the period subsequent to the date
of the most recent financial statements included or incorporated by reference in
the Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the capital stock of
the Company, increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company and its consolidated subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated by reference in the
Prospectus to such specified date there were any decreases, as compared with the
corresponding period in the preceding year, in operating revenues, operating
income, net income, or earnings per share of Common Stock of the Company and its
subsidiaries, except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
9
<PAGE>
explanation is not deemed necessary by the Representatives; and (iv) they have
carried out specified procedures performed for the purpose of comparing certain
specified financial information and percentages (which is limited to financial
information derived from general accounting records of the Company) included or
incorporated by reference in the Registration Statement and Prospectus with
indicated amounts in the financial statements or accounting records of the
Company and (excluding any questions of legal interpretation) have found such
information and percentages to be in agreement with the relevant accounting and
financial information of the Company referred to in such letter in the
description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Debt Securities on the terms and in the manner contemplated by the
Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Debt Securities on the terms and in the manner contemplated by
the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact
10
<PAGE>
which in the opinion of counsel for the Underwriters is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the Company
to sell and deliver the Debt Securities are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, threatened.
(b) The order of the Minnesota Public Utilities Commission
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice of
such cancellation shall be given to the Underwriters in writing or by telephone
or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the Debt
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Debt Securities.
9. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims,
11
<PAGE>
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Debt
Securities as originally filed or in any amendment thereof, or in the Prospectus
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
and agrees to reimburse each such indemnified party for any legal or other
expenses as reasonably incurred by them in connection with investigating or
defending any such loss, claim, damages, liability or action; provided that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use therein and provided further that such indemnity with
respect to a prospectus included in the registration statement or any amendment
thereto prior to the supplementing thereof with the Prospectus Supplement shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Debt Securities which are the subject thereof if such
person was not sent or given a copy of the Prospectus (but without the documents
incorporated by reference therein) at or prior to the confirmation of the sale
of such Debt Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such prospectus was corrected in the Prospectus, provided that the
Company shall have delivered the Prospectus, in a timely manner and in
sufficient quantities to permit such delivery by the Underwriters. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to
12
<PAGE>
assume the defense thereof, with counsel satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party, or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel and one local counsel, approved by the Representatives in the
case of subparagraph (a), representing the indemnified parties under
subparagraphs (a) or (b), as the case may be, who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Debt Securities If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to
13
<PAGE>
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Debt Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. Default by an Underwriter. (a) If any Underwriter shall default in
its obligation to purchase the Debt Securities which it has agreed to purchase
hereunder (in this Section called the "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Unpurchased Debt Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Debt Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Unpurchased Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Unpurchased Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Debt Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Unpurchased Debt Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such
14
<PAGE>
person had originally been a party to this Agreement with respect to such
Unpurchased Debt Securities
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Debt Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Debt Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Debt Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Debt Securities which such Underwriter agreed to purchase
hereunder) of the Unpurchased Debt Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Debt Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the Debt
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Unpurchased Debt Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Debt Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) if a banking moratorium shall have been declared either by
Federal, Minnesota or New York State authorities, (iii) if trading in any
securities of the Company shall have been suspended or halted, or (iv) if there
shall have occurred any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a war or national
emergency or any other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the manner
contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company
15
<PAGE>
or any of their respective officers, directors or controlling persons within the
meaning of the Act, and will survive delivery of and payment for the Debt
Securities The provisions of Sections 5, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and, if
sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule 1
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 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.
16
<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.
17
<PAGE>
SCHEDULE I
Underwriting Agreement dated _____________
Registration Statement No. 33-______
Representatives and Addresses:
Debt Securities:
Designation: ___% Debt Securities, 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 Debt Securities:
Office for Payment of Debt Securities:
Office for Checking of Debt Securities:
18
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
<S> <C>
Name Amount
- ----- ------------
.................................................. $
..................................................
..................................................
..................................................
..................................................
.................................................. ------------
Total ..................................................
------------
------------
</TABLE>
19
<PAGE>
Exhibit A
Form of opinion of Gary R. Johnson
Re: $ principal amount of Debt Securities, Series due ,
% of Northern States Power Company, a Minnesota corporation.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, a Minnesota corporation,
herein called the "Company," with respect to the issue and sale by the
Company of $ principal amount of Debt Securities, Series due ,
% herein called the "Debt Securities." In connection therewith I have
participated in the preparation of the proceedings for the issuance and sale
of the Debt Securities including the Underwriting Agreement dated ,
between you and the Company relating to your purchase of the Debt
Securities, herein called the "Agreement," and have either participated in
the preparation of or examined the Indenture dated ____________ and the
Supplemental Indenture thereto and the Supplemental Indenture dated as of
____________, creating the Debt Securities, all from the Company to Norwest
Bank Minnesota, National Association, as Trustee (which Indenture and
Supplemental Indenture are herein collectively called the "Indenture"). I
also have participated in the preparation of or examined the registration
statement and any amendments thereto and the accompanying prospectuses and
any supplements thereto, as filed under the Securities Act of 1933, as
amended (the "Act"), with respect to the Debt Securities. Whenever the terms
"Registration Statement" or "Prospectus" are used herein, they shall have the
respective meanings set forth in the Agreement. My examination has extended
to all statutes, records, instruments, and documents which I have deemed
necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the
laws of the State of Minnesota; has corporate power, right, and
authority to do business and to own property in the states of
Minnesota, North Dakota, 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 Debt Indenture and issue and sell the Debt
Securities;
2. The authorized capital stock of the Company is as set forth
in the Prospectus and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable;
20
<PAGE>
3. Each Significant Subsidiary, as defined in the Agreement,
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
it owns or leases substantial properties or in which the conduct of its
business requires such qualification; all of the issued and outstanding
capital stock of each subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and the capital stock of
each such subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of any pledge, lien, encumbrance,
claim or equity;
4. The Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding obligation of the
Company, except to the extent that the provisions for indemnities may
be held to be unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate
corporate proceedings on the part of the Company, has been duly
executed and delivered and constitutes a legal, valid, and binding
instrument enforceable in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws affecting enforcement of creditors' rights;
6. The issuance of the Debt Securities in accordance with the
terms of the Indenture and the sale and delivery thereof pursuant to
the provisions of the Agreement have been duly authorized by the
Company; the statements made under the caption "Description of Debt
Securities" in the Prospectus, insofar as they purport to summarize
provisions of documents specifically referred to therein, fairly
present the information called for with respect thereto by Form S-3;
the Debt Securities are in due legal form, constitute legal, valid, and
binding obligations of the Company, and (subject to the qualifications
expressed in paragraph 5 above with respect to the enforceability of
certain provisions of the Indenture) are enforceable in accordance with
their terms;
7. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof and compliance by
the Company with all the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or
by which it is bound, or the Restated Articles of Incorporation, as
amended, or by-laws of the Company or, to the best of my knowledge, any
order, rule or regulation applicable to the Company of any court or of
any Federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its property;
8. The Registration Statement has become effective under the
Act. The Prospectus Supplement (as defined in the Agreement) has been
filed pursuant to Rule 424(b) under the Act, and no proceedings for a
stop order have been instituted or to the knowledge of such counsel are
pending or threatened under Section 8(d) of the Act; the Minnesota
Public Utilities Commission has issued its order approving the
Company's
21
<PAGE>
capital structure which order authorizes the issuance of the Debt
Securities; the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"); and no
further approval of, authorization, consent, certificate or order of
any governmental body, federal, state or other, is required in
connection with the issuance and sale of the Debt Securities by the
Company to you as provided in the Agreement, except as may be required
by state securities laws;
9. At the time the Registration Statement became effective,
the Registration Statement (other than the financial statements and
supporting schedules included or incorporated by reference therein, as
to which no opinion is being expressed) complied as to form in all
material respects with the requirements of the Act, the rules and
regulations thereunder, the Trust Indenture Act and the rules and
regulations thereunder;
10. I do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required nor of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement which are not described and
filed as required;
11. The Company has good and valid title to all real and fixed
property and leasehold rights which it owns, subject only to: (a) taxes
and assessments not yet delinquent; (b) the lien of the Company's Trust
Indenture dated as of February 1, 1937, as supplemented and amended
(the "First Mortgage 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 First Mortgage Indenture;
12. 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
13. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Debt Securities"
purporting to set forth the opinion of counsel or purporting to be
based upon the opinion of counsel correctly set forth my opinion on
said respective matters.
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.
22
<PAGE>
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 14
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 and General Counsel
Northern States Power Company
23
<PAGE>
EXHIBIT 4.01 WW
FORM OF
SUPPLEMENTAL TRUST INDENTURE
FROM
NORTHERN STATES POWER COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE
------------------------
DATED , 1998
------------------------
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>
Parties.................................................................................................... 1
Recitals................................................................................................... 1
Form of Bonds of Series Due................................................................................ 3
Form of Trustee's Certificate.............................................................................. 6
Further Recitals........................................................................................... 6
</TABLE>
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO THE LIEN OF
THE ORIGINAL INDENTURE.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
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......................................................................... 7
</TABLE>
ARTICLE II.
FORM AND EXECUTION OF BONDS OF SERIES DUE .
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Section 2.01 -- Terms of bonds.................................................................... 8
Section 2.02 -- Redemption of bonds............................................................... 9
Section 2.03 -- Interchangeability of bonds....................................................... 10
Section 2.04 -- Charges for exchange or transfer of bonds......................................... 10
Section 2.05 -- Execution of bonds................................................................ 10
Section 2.06 -- Book-Entry System................................................................. 10
</TABLE>
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.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Section 3.01 --(a) Sinking Fund established for bonds of Series due.................................. 14
(b) Bonds delivered to Trustee equivalent to cash under Section 3.01(a)............... 14
(c) Permanent additions to the extent available as basis for issuance of bonds,
equivalent to cash under Section 3.01(a).......................................... 14
Section 3.02 --(a) Moneys to be applied to purchase or redemption of bonds of Series due............. 15
(b) Bonds to be selected by lot....................................................... 15
(c) Effect of deposit of moneys for redemption........................................ 15
(d) Exchange of registered bonds for unredeemed balance of registered bonds........... 15
Section 3.03 -- Bonds purchased or redeemed to be cancelled....................................... 15
</TABLE>
i
<PAGE>
ARTICLE IV.
APPOINTMENT OF AUTHENTICATING AGENT.
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C> <C>
Section 4.01 -- Appointment of agent or agents for bonds of Series due................ 16
Section 4.02 --(a) Qualification of agents............................................... 16
(b) Continuation of agent upon merger or consolidation.................... 16
(c) Termination of successor agent........................................ 16
(d) Compensation of agent................................................. 16
Section 4.03 -- Form of alternate certificate of authentication....................... 16
Section 4.04 -- Limit on location and number of agents................................ 17
</TABLE>
ARTICLE V.
FINANCING STATEMENT TO COMPLY WITH THE
UNIFORM COMMERCIAL CODE.
<TABLE>
<S> <C> <C> <C>
Section 5.01 -- Names and addresses of debtor and secured party....................... 17
Section 5.02 -- Property subject to lien.............................................. 17
Section 5.03 -- Maturity dates and principal amounts of obligations secured........... 17
Section 5.04 -- Financing Statement adopted for all First Mortgage Bonds listed in
Section 5.03.......................................................... 17
Section 5.05 -- Recording data for the 1937 Indenture and prior Supplemental Trust
Indentures............................................................ 17
Section 5.06 -- Financing Statement covers additional series of First Mortgage
Bonds................................................................. 19
</TABLE>
ARTICLE VI.
AMENDMENTS TO INDENTURE.
<TABLE>
<S> <C> <C> <C>
Section 6.01 -- Consent of holders of Bonds........................................... 20
</TABLE>
ARTICLE VII.
MISCELLANEOUS.
<TABLE>
<S> <C> <C> <C>
Section 7.01 -- Recitals of fact, except as stated, are statements of the Company..... 20
Section 7.02 -- Supplemental Trust Indenture to be construed as a part of the 1937
Indenture, as supplemented............................................ 20
Section 7.03 --(a) Trust Indenture Act to control........................................ 20
--(b) Severability of conditions contained in Supplemental Trust Indenture
and bonds............................................................. 20
Section 7.04 -- Word "Indenture" as used herein includes in its meaning the 1937
Indenture and all indentures supplemental thereto..................... 20
Section 7.05 -- References to either party in Supplemental Trust Indenture include
successors or assigns................................................. 20
Section 7.06 --(a) Provision for execution in counterparts............................... 21
(b) Table of Contents and descriptive headings of Articles not to affect
meaning............................................................... 21
</TABLE>
------------------------
<TABLE>
<S> <C> <C> <C>
Schedule A................................................................................... A-1
</TABLE>
ii
<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 to certain additional
1
<PAGE>
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 (redeemed)
January 1, 1973 Series due February 1, 2003 (redeemed)
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 (retired)
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 (retired)
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
April 1, 1997 Pollution Control Series M, N, O and P; and
March 1, 1998 Series due March 1, 2023, and March 1, 2028
</TABLE>
2
<PAGE>
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
$1,000, 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. ______________ $ ______________
[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
- ------------------------
*This legend is to be included if the bonds are issued as a Global bond in
book-entry form.
3
<PAGE>
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 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
- ------------------------
*This legend is to be included if the bonds are issued as a Global bond in
book-entry form.
4
<PAGE>
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>
<CAPTION>
<S> <C>
If Redeemed During Regular
the Twelve Month Period Redemption
Beginning Premium
</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, 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.
5
<PAGE>
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.
<TABLE>
<CAPTION>
<S> <C>
DATED: NORTHERN STATES POWER COMPANY
ATTEST: BY
SECRETARY PRESIDENT
(Form of Trustee's Certificate)
</TABLE>
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
<TABLE>
<S> <C>
HARRIS TRUST AND SAVINGS BANK, As Trustee,
By
AUTHORIZED OFFICER
</TABLE>
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:
6
<PAGE>
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 or 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, evidence 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
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any of such property, except such as is specifically required to be deposited
with the Trustee by some express provision of the Indenture;
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 any 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
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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.
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
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Indenture and in Article III hereof) at the principal amount thereof and accrued
interest thereon to the date of redemption:
<TABLE>
<CAPTION>
IF REDEEMED IF REDEEMED
DURING THE DURING THE
TWELVE MONTH REGULAR TWELVE MONTH REGULAR
PERIOD REDEMPTION PERIOD REDEMPTION
BEGINNING PREMIUM BEGINNING PREMIUM
------------- ----------- ------------- -----------
<S> <C> <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 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.
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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 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 of 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
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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 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.
(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
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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.
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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.]
(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
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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.
(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
15
<PAGE>
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 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.
16
<PAGE>
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.
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 February 1, 1999..................................................................... $ 200,000,000
Series due October 1, 2001...................................................................... $ 150,000,000
Series due December 1, 2000..................................................................... $ 100,000,000
Series due April 1, 2003........................................................................ $ 80,000,000
Series due December 1, 2005..................................................................... $ 70,000,000
Resource Recovery Series I...................................................................... $ 18,400,000
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
Pollution Control Series M...................................................................... $ 60,000,000
Pollution Control Series N...................................................................... $ 27,900,000
Pollution Control Series O...................................................................... $ 50,000,000
Pollution Control Series P...................................................................... $ 50,000,000
Series due March 1, 2028........................................................................ $ 150,000,000
Series due March 1, 2003........................................................................ $ 100,000,000
</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
17
<PAGE>
Dakota designated by law for the filing or recording thereof in respect of all
property of the Company subject thereto:
<TABLE>
<CAPTION>
<S> <C>
Original Indenture Supplemental Indenture
Dated February 1, 1937 Dated February 1, 1972
Supplemental Indenture Supplemental Indenture
Dated June 1, 1942 Dated January 1, 1973
Supplemental Indenture Supplemental Indenture
Dated February 1, 1944 Dated January 1, 1974
Supplemental Indenture Supplemental Indenture
Dated October 1, 1945 Dated September 1, 1974
Supplemental Indenture Supplemental Indenture
Dated July 1, 1948 Dated April 1, 1975
Supplemental Indenture Supplemental Indenture
Dated August 1, 1949 Dated May 1, 1975
Supplemental Indenture Supplemental Indenture
Dated June 1, 1952 Dated March 1, 1976
Supplemental Indenture Supplemental Indenture
Dated October 1, 1954 Dated June 1, 1981
Supplemental Indenture Supplemental Indenture
Dated September 1, 1956 Dated December 1, 1981
Supplemental Indenture Supplemental Indenture
Dated August 1, 1957 Dated May 1, 1983
Supplemental Indenture Supplemental Indenture
Dated July 1, 1958 Dated December 1, 1983
Supplemental Indenture Supplemental Indenture
Dated December 1, 1960 Dated September 1, 1984
Supplemental Indenture Supplemental Indenture
Dated August 1, 1961 Dated December 1, 1984
Supplemental Indenture Supplemental Indenture
Dated June 1, 1962 Dated May 1, 1985
Supplemental Indenture Supplemental Indenture
Dated September 1, 1963 Dated September 1, 1985
Supplemental Indenture Supplemental and Restated Indenture
Dated August 1, 1966 Dated May 1, 1988
Supplemental Indenture Supplemental Indenture
Dated June 1, 1967 Dated July 1, 1989
Supplemental Indenture Supplemental Indenture
Dated October 1, 1967 Dated June 1, 1990
Supplemental Indenture Supplemental Indenture
Dated May 1, 1968 Dated October 1, 1992
Supplemental Indenture Supplemental Indenture
Dated October 1, 1969 Dated April 1, 1993
Supplemental Indenture Supplemental Indenture
Dated February 1, 1971 Dated December 1, 1993
Supplemental Indenture Supplemental Indenture
Dated May 1, 1971 Dated February 1, 1994
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
Supplemental Indenture Supplemental Indenture
Dated October 1, 1994 Dated June 1, 1995
<S> <C>
Supplemental Indenture Supplemental Indenture
Dated April 1, 1997 Dated March 1, 1998
</TABLE>
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.
19
<PAGE>
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, April
1, 1997, March 1, 1998 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
20
<PAGE>
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.
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
$ .
------------------------
21
<PAGE>
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.
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
22
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
STATE OF MINNESOTA ss:
COUNTY OF HENNEPIN
</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>
<CAPTION>
<S> <C> <C>
STATE OF MINNESOTA ss:
COUNTY OF HENNEPIN
</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)
23
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
STATE OF ILLINOIS ss:
COUNTY OF COOK
</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>
<CAPTION>
<S> <C> <C>
STATE OF ILLINOIS ss:
COUNTY OF COOK
</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)
24
<PAGE>
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
A-1
<PAGE>
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.
A-2
<PAGE>
Exhibit 4.01XX
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
AND
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
TRUSTEE
INDENTURE
DATED AS OF _________ __, 199_
______________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(a) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ---------------- ------------------------------------ ------
<S> <C> <C>
310(a)(1) 9.9 43
310(a)(2) 9.9 43
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 9.9 43
310(b) 9.8 43
310(c) NOT APPLICABLE --
311(a) 9.14 46
311(b) 9.14 46
311(c) NOT APPLICABLE --
312(a) 7.1(a) 31
312(b) 7.1(b) 31
312(c) 7.1(c) 32
313(a) 7.3(a) 33
313(b) 7.3(b) 33
313(c) 7.3(d) 33
313(d) 7.3(c) and 7.3(d) 33
314(a) 7.2(a), 7.2(b), 7.2(c) and 6.6 30-32
314(b) 6.5 30
314(c)(1) Definition of Officers' Certificate, 6.6 and 15.5(a) 5;30;56
314(c)(2) Definition of Opinion of Counsel and 15.5 5;56
314(c)(3) NOT APPLICABLE --
314(d)(1) Definition of Expert and 4.6(b) 4;23
314(d)(2) Definition of Expert and 4.6(a) 4;23
314(d)(3) 4.6(a) and 4.6(b) 23
314(e) 15.5(b) 56
314(f) NOT APPLICABLE --
315(a) 9.1 and 9.2 40-42
315(b) 8.8 39
315(c) 9.1(a) 40
315(d) 9.1(b) 40
315(e) 8.9 39
316(a) 8.7 39
10.4 47
13.2 53
316(b) 8.4 38
13.2 53
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ---------------- ------------------------------------ ------
<S> <C> <C>
316(c) 10.6 48
317(a)(1) 8.2(b) 36
317(a)(2) 8.2(c) 36
317(b) 5.2 27
6.4 29
318(a) 15.7 57
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties......................................................................1
Recitals.....................................................................1
ARTICLE I. DEFINITIONS.......................................................1
Section 1.1. General..............................................1
Section 1.2. Trust Indenture Act..................................1
Section 1.3. Definitions..........................................2
ARTICLE II. FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES.......8
Section 2.1. Form Generally.......................................8
Section 2.2. Form Of Trustee's Certificate Of Authentication......9
Section 2.3. Amount Unlimited.....................................9
Section 2.4. Denominations, Dates, Interest Payment And
Record Dates.......................................9
Section 2.5. Execution, Authentication, Delivery And Dating......10
Section 2.6. Exchange And Registration Of Transfer Of Notes......14
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Notes..........15
Section 2.8. Temporary Notes.....................................16
Section 2.9. Cancellation Of Notes Paid, Etc.....................16
Section 2.10. Interest Rights Preserved...........................16
Section 2.11. Special Record Date.................................16
Section 2.12. Payment Of Notes....................................16
Section 2.13. Notes Issuable In The Form Of A Global Note.........18
ARTICLE III. REDEMPTION OF NOTES............................................20
Section 3.1. Applicability Of Article............................20
Section 3.2. Notice Of Redemption; Selection Of Notes............20
Section 3.3. Payment Of Notes On Redemption; Deposit Of
Redemption Price...................................21
ARTICLE IV. SENIOR NOTE MORTGAGE BONDS......................................22
Section 4.1. Delivery Of Initial Series Of Senior Note
Mortgage Bonds....................................22
Section 4.2. Receipt.............................................22
Section 4.3. Senior Note Mortgage Bonds Held By The Trustee......22
Section 4.4. No Transfer Of Senior Note Mortgage Bonds;
Exception.........................................23
Section 4.5. Delivery To The Company Of All Senior Note
Mortgage Bonds....................................23
Section 4.6. Fair Value Certificate..............................23
Section 4.7. Further Assurances..................................24
Section 4.8. Exchange And Surrender Of Senior Note Mortgage
Bonds............................................24
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
Section 4.9. Acceptance Of Additional Senior Note Mortgage
Bonds............................................25
Section 4.10. Terms Of Senior Note Mortgage Bonds................25
Section 4.11. Senior Note Mortgage Bonds As Security For Notes...25
ARTICLE V. SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS....................26
Section 5.1. Satisfaction And Discharge.........................26
Section 5.2. Deposited Moneys To Be Held In Trust By Trustee....28
Section 5.3. Paying Agent To Repay Moneys Held..................28
Section 5.4. Return Of Unclaimed Moneys.........................28
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY............................28
Section 6.1. Payment Of Principal, Premium And Interest.........28
Section 6.2. Office For Notices And Payments, Etc. .............28
Section 6.3. Appointments To Fill Vacancies In Trustee's
Office...........................................29
Section 6.4. Provision As To Paying Agent.......................29
Section 6.5. Opinions Of Counsel................................30
Section 6.6. Certificates And Notice To Trustee.................30
ARTICLE VII. NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE...31
Section 7.1. Noteholder Lists...................................31
Section 7.2. Securities And Exchange Commission Reports.........32
Section 7.3. Reports By The Trustee.............................33
ARTICLE VIII. REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS
OF DEFAULT.................................................33
Section 8.1. Events Of Default..................................33
Section 8.2. Payment Of Notes On Default; Suit Therefor.........35
Section 8.3. Application Of Moneys Collected By Trustee.........37
Section 8.4. Proceedings By Noteholders.........................38
Section 8.5. Proceedings By Trustee.............................38
Section 8.6. Remedies Cumulative And Continuing.................38
Section 8.7. Direction Of Proceedings And Waiver Of Defaults
By Majority Of Noteholders.......................39
Section 8.8. Notice Of Default..................................39
Section 8.9. Undertaking To Pay Costs...........................39
ARTICLE IX. CONCERNING THE TRUSTEE.........................................40
Section 9.1. Duties And Responsibilities Of Trustee.............40
Section 9.2. Reliance On Documents, Opinions, Etc. .............41
Section 9.3. No Responsibility For Recitals, Etc. ..............42
Section 9.4. Trustee, Authenticating Agent, Paying Agent
Or Registrar May Own Notes ......................42
Section 9.5. Moneys To Be Held In Trust.........................42
Section 9.6. Compensation And Expenses Of Trustee...............42
</TABLE>
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<TABLE>
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Section 9.7. Officers' Certificate As Evidence..................43
Section 9.8. Conflicting Interest Of Trustee....................43
Section 9.9. Existence And Eligibility Of Trustee...............43
Section 9.10. Resignation Or Removal Of Trustee..................43
Section 9.11. Appointment Of Successor Trustee...................44
Section 9.12. Acceptance By Successor Trustee....................45
Section 9.13. Succession By Merger, Etc..........................45
Section 9.14. Limitations On Rights Of Trustee As A Creditor.....46
Section 9.15. Authenticating Agent...............................46
ARTICLE X. CONCERNING THE NOTEHOLDERS......................................47
Section 10.1. Action By Noteholders..............................47
Section 10.2. Proof Of Execution By Noteholders..................47
Section 10.3. Who Deemed Absolute Owners.........................47
Section 10.4. Company-Owned Notes Disregarded....................47
Section 10.5. Revocation Of Consents; Future Holders Bound.......48
Section 10.6. Record Date For Noteholder Acts....................48
ARTICLE XI. NOTEHOLDERS' MEETING...........................................48
Section 11.1. Purposes Of Meetings...............................48
Section 11.2. Call Of Meetings By Trustee........................49
Section 11.3. Call Of Meetings By Company Or Noteholders.........49
Section 11.4. Qualifications For Voting..........................49
Section 11.5. Regulations........................................49
Section 11.6. Voting.............................................50
Section 11.7. Rights Of Trustee Or Noteholders Not Delayed.......50
ARTICLE XII. CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION....51
Section 12.1. Company May Consolidate, Etc. Only On Certain
Terms............................................51
Section 12.2. Successor Corporation Substituted..................51
ARTICLE XIII. SUPPLEMENTAL INDENTURES......................................51
Section 13.1. Supplemental Indentures Without Consent Of
Noteholders......................................51
Section 13.2. Supplemental Indentures With Consent Of
Noteholders......................................53
Section 13.3. Compliance With Trust Indenture Act; Effect
Of Supplemental Indentures.......................54
Section 13.4. Notation On Notes..................................54
Section 13.5. Evidence Of Compliance Of Supplemental Indenture
To Be Furnished Trustee..........................54
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS...................................................54
Section 14.1. Indenture And Notes Solely Corporate Obligations...54
ARTICLE XV. MISCELLANEOUS PROVISIONS.......................................55
</TABLE>
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<TABLE>
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Section 15.1. Provisions Binding On Company's Successors.........55
Section 15.2. Official Acts By Successor Corporation.............55
Section 15.3. Notices............................................55
Section 15.4. Governing Law......................................55
Section 15.5. Evidence Of Compliance With Conditions Precedent...55
Section 15.6. Business Days......................................57
Section 15.7. Trust Indenture Act To Control.....................57
Section 15.8. Table Of Contents, Headings, Etc...................57
Section 15.9. Execution In Counterparts..........................57
Section 15.10. Manner Of Mailing Notice To Noteholders............57
Section 15.11. Approval By Trustee Of Expert Or Counsel...........57
EXHIBIT A -- Form of Global Note Prior to Release Date....................A-1
EXHIBIT B -- Form of Note Prior to Release Date...........................B-1
EXHIBIT C -- Form of Global Note Following Release Date...................C-1
EXHIBIT D -- Form of Note Following Release Date..........................D-1
</TABLE>
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THIS INDENTURE, dated as of ________ __, _____, between NORTHERN
STATES POWER COMPANY, a corporation duly organized and existing under the
laws of the State of Minnesota (the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, as trustee (the "Trustee").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its Senior Notes (the "Notes"), to be issued as in
this Indenture provided;
WHEREAS, subject to the provisions of Section 4.11 hereof, the Company
has issued a series of Senior Note Mortgage Bonds (as hereinafter defined) and
has delivered such series to the Trustee to hold in trust for the benefit of the
respective Holders from time to time of the Notes, and, pursuant to the terms
and provisions hereof, the Company may deliver additional Senior Note Mortgage
Bonds to the Trustee for such purpose or require the Trustee to deliver to the
Company for cancellation any and all Senior Note Mortgage Bonds held by the
Trustee;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Notes, as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. General. The terms defined in this Article I (except as herein
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Article I.
Section 1.2. Trust Indenture Act. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
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(b) Unless otherwise indicated, all terms used in this Indenture
that are defined by the TIA, defined by the TIA by reference to another statute
or defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
Section 1.3. Definitions. For purposes of this Indenture, the following terms
shall have the following meanings.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean any agent of the Trustee which
shall be appointed and acting pursuant to Section 9.15 hereof.
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or the Financing Committee of such Board or any other duly authorized
committee of such Board.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BONDHOLDERS' CERTIFICATE:
The term "Bondholders' Certificate" shall mean a certificate signed by the
inspectors of votes, or any other party performing such duties, of the
applicable meeting of the holders of the First Mortgage Bonds issued under
the Mortgage Indenture or by the Mortgage Trustee in the case of consents of
such holders that are sought without a meeting.
BUSINESS DAY:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions or trust companies
in the Borough of Manhattan, the City and State of New York, or in the city
where the corporate trust office of the Trustee is located, are obligated or
authorized by law or executive order to close.
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COMMISSION:
The term "Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body
performing such duties.
COMPANY:
The term "Company" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
COMPANY ORDER:
The term "Company Order" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President, the
Treasurer or an Assistant Treasurer, and the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "corporate trust office of the Trustee", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any
particular time its corporate trust business shall be principally
administered, which office is at the date of the execution of this Indenture
located at Corporate Trust Services, Sixth and Marquette Avenue, Minneapolis,
Minnesota 55479-0069.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.5 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered and qualified under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section 8.1
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
EXPERT:
The term "Expert" shall mean any officer of the Company familiar with the
terms of the Mortgage Indenture and this Indenture, any law firm, any
investment banking firm, or any other Person, satisfactory in the reasonable
judgment of the Trustee.
FIRST MORTGAGE BONDS:
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The term "First Mortgage Bonds" shall mean all first mortgage bonds issued by
the Company and outstanding under the Mortgage Indenture.
GLOBAL NOTE:
The term "Global Note" shall mean a Note that pursuant to Section 2.5 hereof
is issued to evidence Notes, that is delivered to the Depository or pursuant
to the instructions of the Depository and that shall be registered in the
name of the Depository or its nominee.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" shall mean, unless otherwise specified
in a Company Order pursuant to Section 2.5 hereof, (a) each [_______ and
_______] during the period any Note is outstanding (provided that the first
Interest Payment Date for any Note, the Original Issue Date of which is after a
Regular Record Date but prior to the respective Interest Payment Date, shall be
the Interest Payment Date following the next succeeding Regular Record Date),
(b) a date of maturity of such Note and (c) only with respect to defaulted
interest on such Note, the date established by the Trustee for the payment of
such defaulted interest pursuant to Section 2.11 hereof.
MATURITY:
The term "maturity," when used with respect to any Note, shall mean the date
on which the principal of such Note becomes due and payable as therein or
herein provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
MORTGAGE INDENTURE:
The term "Mortgage Indenture" shall mean the Trust Indenture, dated as
of February 1, 1937 from the Company to Harris Trust and Savings Bank, as
trustee, as supplemented and amended from time to time.
MORTGAGE TRUSTEE:
The term "Mortgage Trustee" shall mean the Person serving as trustee at
the time under the Mortgage Indenture.
NOTE OR NOTES:
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The terms "Note" or "Notes" shall mean any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
NOTEHOLDER:
The terms "Noteholder", "Holder of Notes" or "Holder" shall mean any Person
in whose name at the time a particular Note is registered on the books of the
Trustee kept for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the Company,
shall mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 15.5 hereof. If the Indenture requires the delivery
of an Opinion of Counsel to the Trustee, the text and substance of which has
been previously delivered to the Trustee, the Company may satisfy such
requirement by the delivery by the legal counsel that delivered such previous
Opinion of Counsel of a letter to the Trustee to the effect that the Trustee
may rely on such previous Opinion of Counsel as if such Opinion of Counsel
was dated and delivered the date delivery of such Opinion of Counsel is
required. Any Opinion of Counsel may contain conditions and qualifications
satisfactory to the Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "Opinion of Independent Counsel" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 15.5. Any Opinion of Independent
Counsel may contain conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a Note, or portions thereof,
the date upon which it, or such portion, was issued by the Company pursuant
to this Indenture and authenticated by the Trustee (other than in connection
with a transfer, exchange or substitution).
OUTSTANDING:
The term "outstanding", when used with reference to Notes, shall, subject to
Section 10.4 hereof, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except
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(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company), provided that
if such Notes are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as provided in Article III, or
provisions satisfactory to the Trustee shall have been made for giving such
notice;
(c) Notes, or portions thereof, that have been paid and discharged or
are deemed to have been paid and discharged pursuant to the provisions of this
Indenture; and
(d) Notes in lieu of or in substitution for which other Notes shall
have been authenticated and delivered, or which have been paid, pursuant to
Section 2.7 hereof.
PERSON:
The term "Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political
subdivision thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "principal executive offices of the Company" shall mean 414 Nicollet
Mall, Minneapolis, Minnesota 55401, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
REGULAR RECORD DATE:
The term "Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5, for an Interest Payment Date for a
particular Note (a) the fifteenth day of the calendar month next preceding
each Interest Payment Date (unless the Interest Payment Date is the date of
maturity of such Note, in which event, the Regular Record Date shall be as
described in clause (b) hereof) and (b) the date of maturity of such Note.
RELATED SERIES OF NOTES:
The term "related series of Notes" shall mean, when used in reference to
First Mortgage Bonds, Senior Notes Series A, the __% Senior Notes, Series due
_____, and, when used in reference to another series of Senior Note Mortgage
Bonds, shall mean the series of Notes in respect of which such series of
Senior Note Mortgage Bonds were delivered to the Trustee pursuant to Section
4.9 hereof upon the initial authentication and issuance of such series of
Notes pursuant to Section 2.5 hereof.
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RELATED SERIES OF SENIOR NOTE MORTGAGE BONDS:
The term "related series of Senior Note Mortgage Bonds" shall mean, when used
in reference to the __% Senior Notes, Series due _____, the First Mortgage
Bonds, Senior Note Series A, and, when used in reference to any other series
of Notes, shall mean the series of Senior Note Mortgage Bonds delivered to
the Trustee pursuant to Section 4.9 hereof in connection with the initial
authentication and issuance of such series of Notes pursuant to Section 2.5
hereof.
RELEASE DATE:
The term "Release Date" shall mean the effective date of the amendment to
Article V, Section 6a(i) of the Articles of Incorporation of the Company so
that the approval of preferred stockholders of the Company is no longer
required to issue unsecured debt exceeding 20% of the sum of the secured
debt, capital stock and capital surplus of the Company.
RESTATED INDENTURE:
The term "Restated Indenture" shall mean the Supplemental and Restated Trust
Indenture dated as of May 1, 1988 by and between the Company and Harris Trust
and Savings Bank, as trustee.
RESPONSIBLE OFFICER:
The term "responsible officer" or "responsible officers" when used with
respect to the Trustee shall mean one or more of the following: the chairman of
the board of directors, the vice chairman of the board of directors, the
chairman of the executive committee, the president, any vice president, the
secretary, the treasurer, any trust officer, any assistant trust officer, any
second or assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
SENIOR NOTE MORTGAGE BONDS:
The term "Senior Note Mortgage Bonds" shall mean the First Mortgage Bonds,
Senior Note Series A issued by the Company pursuant to the Supplemental Trust
Indenture dated as of _______, and any other first mortgage bonds issued by
the Company under the Mortgage Indenture and delivered to the Trustee
pursuant to Section 4.09 hereof to secure the payment of the principal of and
interest on the Senior Notes.
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SPECIAL RECORD DATE:
The term "Special Record Date" shall mean, with respect to any Note,
the date established by the Trustee in connection with the payment of defaulted
interest on such Note pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "stated maturity" shall mean with respect to any Note, the
last date on which principal on such Note becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
TRUSTEE:
The term "Trustee" shall mean Norwest Bank Minnesota, National Association
and, subject to Article IX, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment
of principal and interest by, the United States of America or an agency
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged or (ii) certificates or receipts
representing direct ownership interests in obligations or specified portions
(such as principal or interest) of obligations described in clause (i) above,
which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
ARTICLE II.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.1. Form Generally.
(a) If the Notes are in the form of a Global Note they shall be in
substantially the form set forth in Exhibit A (or, following the Release Date,
Exhibit C) to this Indenture, and, if the Notes are not in the form of a Global
Note, they shall be in substantially the form set forth in Exhibit B (or,
following the Release Date, Exhibit D) to this Indenture, or, in any case, in
such other form as shall be established by a Board Resolution, or a Company
Order pursuant to a Board Resolution, or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable rules
of any securities exchange or of the Depository or with applicable law or as
may, consistently
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herewith, be determined by the officers executing such Notes, as evidenced by
their execution of such Notes.
(b) The definitive Notes shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
Section 2.2. Form Of Trustee's Certificate Of Authentication. The Trustee's
certificate of authentication on all Notes shall be in substantially the
following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein designated, described or
provided for in the within-mentioned Indenture.
Norwest Bank Minnesota, National Association
--------------------------------------------
, as Trustee
By:
-----------------------------------------
Authorized Officer
Section 2.3. Amount Unlimited. The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
Section 2.4. Denominations, Dates, Interest Payment And Record Dates.
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof or such other amount or
amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indenture supplemental hereto;
provided that the principal amount of a Global Note shall not exceed
$200,000,000 unless otherwise permitted by the Depository.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.13(e) hereof, two or more Original Issue Dates; each Note
issued upon transfer, exchange or substitution of a Note shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(e) hereof.
(c) Each Note shall bear interest from the later of (1) its Original
Issue Date (or, if pursuant to Section 2.13 hereof, a Global Note has two or
more Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount of such Global Note
to which that Original Issue Date is applicable), or (2) the most recent date to
which interest has been paid or duly provided for with respect to such Note
until the principal of such Note is paid or made available for payment, and
interest on each Note shall be payable on each Interest Payment Date after the
Original Issue Date.
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(d) Each Note shall mature on a stated maturity specified in the Note.
The principal amount of each outstanding Note shall be payable on the maturity
date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.5 hereof, interest on each of the Notes shall be calculated on the basis of a
360-day year of twelve 30-day months and shall be computed at a fixed rate until
the maturity of such Notes. The method of computing interest on any Notes not
bearing a fixed rate of interest shall be set forth in a Company Order pursuant
to Section 2.5 hereof. Unless otherwise specified in a Company Order pursuant to
Section 2.5 hereof, principal, interest and premium on the Notes shall be
payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Note is registered at the close of business on any Regular Record Date
or Special Record Date with respect to an Interest Payment Date for such Note
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any registration of transfer,
exchange or substitution of such Note subsequent to such Regular Record Date or
Special Record Date and prior to such Interest Payment Date. Any interest
payable at maturity shall be paid to the Person to whom the principal of such
Note is payable.
(g) Promptly after each Regular Record Date that is not a date of
maturity, the Trustee shall furnish to the Company a notice setting forth the
total amount of the interest payments to be made on the applicable Interest
Payment Date, and to the Depository a notice setting forth the total amount of
interest payments to be made on Global Notes on such Interest Payment Date. The
Trustee (or any duly selected paying agent) shall provide to the Company during
each month that precedes an Interest Payment Date a list of the principal,
interest and premium to be paid on Notes on such Interest Payment Date and to
the Depository a list of the principal, interest and premium to be paid on
Global Notes on such Interest Payment Date. Promptly after the first Business
Day of each month, the Trustee shall furnish to the Company a written notice
setting forth the aggregate principal amount of the Global Notes. The Trustee
shall assume responsibility for withholding taxes on interest paid as required
by law except with respect to any Global Note.
Section 2.5. Execution, Authentication, Delivery And Dating.
(a) The Notes shall be executed on behalf of the Company by one of its
Chairman, President, any Vice President, its Treasurer or an Assistant Treasurer
of the Company and attested by the Secretary or an Assistant Secretary of the
Company. The signature of any of these officers on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
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(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee in
accordance with any such Company Order shall authenticate and deliver such
Notes. The Notes shall be issued in series. Such Company Order shall specify the
following with respect to each series of Notes: (i) any limitations on the
aggregate principal amount of the Notes to be issued as part of such series,
(ii) the Original Issue Date or Dates for such series, (iii) the stated maturity
of such series, (iv) the interest rate or rates, or method of calculation of
such rate or rates, for such series, (v) the terms, if any, regarding the
optional or mandatory redemption of such series, including redemption date or
dates of such series, if any, and the price or prices applicable to such
redemption (including any premium), (vi) whether or not the Notes of such series
shall be issued in whole or in part in the form of a Global Note and, if so, the
Depository for such Global Note, (vii) the designation of such series, (viii) if
the form of the Notes of such series is not as described in Exhibit A, Exhibit
B, Exhibit C or Exhibit D hereto, the form of the Notes of such series, (ix) the
maximum annual interest rate, if any, of the Notes permitted for such series,
(x) any other information necessary to complete the Notes of such series, (xi)
if prior to the Release Date, the designation of the related series of Senior
Note Mortgage Bonds being delivered to the Trustee in connection with the
issuance of such series of Notes, (xii) the establishment of any office or
agency pursuant to Section 6.2 hereof, and (xiii) any other terms of such series
not inconsistent with this Indenture. Prior to authenticating Notes of any
series, and in accepting the additional responsibilities under this Indenture in
relation to such Notes, the Trustee shall receive from the Company the following
at or before the issuance of the initial Note of such series of Notes, and
(subject to Section 9.1 hereof) shall be fully protected in relying upon:
(1) A Board Resolution authorizing such Company Order or Orders and, if
the form of Notes is established by a Board Resolution or a Company Order
pursuant to a Board Resolution, a copy of such Board Resolution;
(2) an Opinion of Counsel stating substantially the following subject
to customary qualifications and exceptions:
(A) if the form of Notes has been established by or pursuant
to a Board Resolution, a Company Order pursuant to a Board Resolution,
or in a supplemental indenture as permitted by Section 2.1 hereof, that
such form has been established in conformity with this Indenture;
(B) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application relating to or affecting the
enforcement of creditors and the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except as enforcement of provisions of the
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Indenture may be limited by state laws affecting the remedies for the
enforcement of the security provided for in the Indenture;
(C) if prior to the Release Date, that the related series of
Senior Note Mortgage Bonds being delivered to the Trustee in connection
with the issuance of such series of Notes have been duly authorized,
executed and delivered, and that such Senior Note Mortgage Bonds and
the Mortgage Indenture are valid and binding obligations of the
Company, enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of
creditors and the application of general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and except as enforcement of provisions thereof may be
limited by state laws affecting the remedies for the enforcement of the
security provided for in the Mortgage Indenture; and that such Senior
Note Mortgage Bonds are entitled to the benefit of the Mortgage
Indenture, equally and ratably, with all First Mortgage Bonds,
including the Senior Note Mortgage Bonds (if any) outstanding
thereunder, except as to sinking fund provisions;
(D) that the Indenture and, if prior to the Release Date, the
Mortgage Indenture are qualified to the extent necessary under the TIA;
(E) that such Notes have been duly authorized and executed by
the Company, and when authenticated by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of
creditors and the application of general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and except as enforcement of provisions of this Indenture
may be limited by state laws affecting the remedies for the enforcement
of the security provided for in this Indenture;
(F) that the issuance of the Notes and, if prior to the
Release Date, the delivery by the Company of the related series of
Senior Note Mortgage Bonds in connection therewith will not result in
any default under this Indenture, the Mortgage Indenture (if
applicable), or any other contract, indenture, loan agreement or other
instrument to which the Company is a party or by which it or any of its
property is bound;
(G) that all consents or approvals of the Minnesota Public
Utilities Commission (or any successor agency) and of any other federal
or state regulatory agency required in connection with the Company's
execution and delivery of this Indenture, such series of Notes and any
Senior Note Mortgage Bonds have been obtained and not withdrawn (except
that no statement need be made with respect to state securities laws);
and
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(H) if prior to the Release Date, that the Mortgage Indenture
and all financing statements have been duly filed and recorded in all
places where such filing or recording is necessary for the perfection
or preservation of the lien of the Mortgage Indenture, and the Mortgage
Indenture constitutes a valid and perfected first lien upon the
property purported to be covered thereby, subject only to permissible
encumbrances (as defined in the Mortgage Indenture).
(3) If prior to the Release Date, the certificate of an Expert meeting
the requirements of Section 4.6(a) hereof and a series of Senior Note Mortgage
Bonds meeting the requirements of Section 4.10 hereof (except that such items
need not be delivered in connection with the issue of the first series of Notes
hereunder, as such items have previously been delivered under Section 4.1
hereof).
(4) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Notes, will not be in
default under any of the terms or covenants contained in the Indenture, (ii) all
conditions that must be met by the Company to issue Notes under this Indenture
have been met, and (iii) if prior to the Release Date, the related series of
Senior Note Mortgage Bonds being delivered to the Trustee meets the requirements
of Section 4.10 hereof.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Note:
(1) if the issuance of such Notes pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Notes and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee;
(2) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors, executive
officers or a trust committee of directors and/or responsible officers
determines that such action would expose the Trustee to personal liability to
Holders of any outstanding Notes.
(e) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
(f) If all Notes of a series are not to be authenticated and issued at
one time, the Company shall not be required to deliver the Company Order, Board
Resolutions, certificate of an Expert, Senior Note Mortgage Bonds, Officers'
Certificate and Opinion of Counsel (including any such that would be otherwise
required pursuant to Section 15.5 hereof) described in Section 2.5(c) hereof at
or prior to the authentication of each Note of such series, if such items are
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delivered at or prior to the time of authentication of the first Note of such
series to be authenticated and issued. If all of the Notes of a series are not
authenticated and issued at one time, for each issuance of Notes after the
initial issuance of Notes, the Company shall be required only to deliver to the
Trustee the Note and a written request (executed by one of the Chairman, the
President, any Vice President, the Treasurer, or an Assistant Treasurer, and the
Secretary or an Assistant Secretary of the Company) to the Trustee to
authenticate such Note and to deliver such Note in accordance with the
instructions specified by such request. Any such request shall constitute a
representation and warranty by the Company that the statements made in the
Officers' Certificate delivered to the Trustee prior to the authentication and
issuance of the first Note of such series are true and correct on the date
thereof as if made on and as of the date thereof.
Section 2.6. Exchange And Registration Of Transfer Of Notes.
(a) Subject to Section 2.13 hereof, Notes may be exchanged for one or
more new Notes of any authorized denominations and of a like aggregate principal
amount, series and stated maturity and having the same terms and Original Issue
Date or Dates. Notes to be exchanged shall be surrendered at any of the offices
or agencies to be maintained pursuant to Section 6.2 hereof, and the Trustee
shall deliver in exchange therefor the Note or Notes which the Noteholder making
the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Notes and shall
register or cause to be registered the transfer of Notes as in this Article II
provided. Such register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register shall be open for inspection by the Company. Upon due
presentment for registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register, authenticate
and deliver in the name of the transferee or transferees one or more new Notes
of any authorized denominations and of a like aggregate principal amount, series
and stated maturity and having the same terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee and duly executed by the Holder or the attorney in fact of such
Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register a
transfer of any Notes selected, called or being called for redemption (including
Notes, if any, redeemable at the option of the Holder provided such Notes are
then redeemable at such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
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(f) If the principal amount, and applicable premium, of part, but not
all of a Global Note is paid, then upon surrender to the Trustee of such Global
Note, the Company shall execute, and the Trustee shall authenticate, deliver and
register, a Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date or Dates and
series as, the unpaid portion of such Global Note.
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Notes.
(a) If any temporary or definitive Note shall become mutilated or be
destroyed, lost or stolen, the Company shall execute, and upon its request the
Trustee shall authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date or Dates and bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or Authenticating Agent such
security or indemnity as may be required by them to save each of them harmless,
and, in every case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
If any Note which has matured, is about to mature, has been redeemed or called
for redemption shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Note, pay or authorize the payment
of the same (without surrender thereof except in the case of a mutilated Note)
if the applicant for such payment shall furnish to the Company, the Trustee and
any paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.7 by
virtue of the fact that any Note is mutilated, destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
such destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder. All Notes shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
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Section 2.8. Temporary Notes. Pending the preparation of definitive Notes,
the Company may execute and the Trustee shall authenticate and deliver
temporary Notes (printed, lithographed or otherwise reproduced). Temporary
Notes shall be issuable in any authorized denomination and substantially in
the form of the definitive Notes but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be
determined by the Company. Every such temporary Note shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Notes. Without unreasonable delay
the Company shall execute and shall deliver to the Trustee definitive Notes
and thereupon any or all temporary Notes shall be surrendered in exchange
therefor at the corporate trust office of the Trustee, and the Trustee shall
authenticate, deliver and register in exchange for such temporary Notes an
equal aggregate principal amount of definitive Notes. Such exchange shall be
made by the Company at its own expense and without any charge therefor to the
Noteholders. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes
authenticated and delivered hereunder.
Section 2.9. Cancellation Of Notes Paid, Etc. All Notes surrendered for the
purpose of payment, redemption, exchange or registration of transfer shall be
surrendered to the Trustee for cancellation and promptly canceled by it and
no Notes shall be issued in lieu thereof except as expressly permitted by
this Indenture. The Company's acquisition of any Notes shall operate as a
redemption or satisfaction of the indebtedness represented by such Notes and
such Notes shall be surrendered by the Company to and canceled by the Trustee.
Section 2.10. Interest Rights Preserved. Each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
shall carry all the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note, and each such Note shall be so dated
that neither gain nor loss of interest shall result from such transfer,
exchange or substitution.
Section 2.11. Special Record Date. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on
any series of Notes (other than on an Interest Payment Date that is a
maturity date), that interest shall cease to be payable to the Persons who
were the Noteholders of such series at the applicable Regular Record Date. In
that event, when moneys become available for payment of the interest, the
Trustee shall (a) establish a date of payment of such interest and a Special
Record Date for the payment of that interest, which Special Record Date shall
be not more than 15 or fewer than 10 days prior to the date of the proposed
payment and (b) mail notice of the date of payment and of the Special Record
Date not fewer than 10 days preceding the Special Record Date to each
Noteholder of such series at the close of business on the 15th day preceding
the mailing at the address of such Noteholder, as it appeared on the register
for the Notes. On the day so established by the Trustee the interest shall be
payable to the Holders of the applicable Notes at the close of business on
the Special Record Date.
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Section 2.12. Payment Of Notes. Payment of the principal, interest and
premium on all Notes shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, of the day on which
payment of principal, interest and premium is due on any Global Note pursuant to
the terms thereof, the Company shall deliver to the Trustee funds available on
such date sufficient to make such payment, by wire transfer of immediately
available funds or by instructing the Trustee to withdraw sufficient funds from
an account maintained by the Company with the Trustee or such other method as is
acceptable to the Trustee and the Depository. On or before 10:00 a.m., New York
City time, or such other time as shall be agreed upon between the Trustee and
the Depository, of the day on which any payment of interest is due on any Global
Note (other than at maturity), the Trustee shall pay to the Depository such
interest in same day funds. On or before 10:00 a.m., New York City time or such
other time as shall be agreed upon between the Trustee and the Depository, of
the day on which principal, interest payable at maturity and premium, if any, is
due on any Global Note, the Trustee shall deposit with the Depository the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depository. As a condition to
the payment, at maturity or upon redemption, of any part of the principal of,
interest on and applicable premium of any Global Note, the Depository shall
surrender, or cause to be surrendered, such Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depository pursuant to
Section 2.6(f) hereof.
(b) With respect to any Note that is not a Global Note, principal,
applicable premium and interest due at the maturity of the Note shall be payable
in immediately available funds when due upon presentation and surrender of such
Note at the corporate trust office of the Trustee or at the authorized office of
any paying agent. Interest on any Note that is not a Global Note (other than
interest payable at maturity) shall be paid to the Holder thereof as its name
appears on the register by check payable in clearinghouse funds; provided that
if the Trustee receives a written request from any Holder of Notes, the
aggregate principal amount of which having the same Interest Payment Date equals
or exceeds $10,000,000, on or before the applicable Regular Record Date for such
Interest Payment Date, interest shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such Holder
designated by such Holder in its request if such account is maintained with the
Trustee or any paying agent.
(c) The Trustee shall receive the Senior Note Mortgage Bonds from the
Company as provided in this Indenture and shall hold the Senior Note Mortgage
Bonds, and any and all sums payable thereon or with respect thereto or realized
therefrom, in trust for the benefit of the holders of the Notes, as herein
provided. Subject to Article VIII hereof, all payments made by or on behalf the
Company to the Trustee on a series of Senior Note Mortgage Bonds shall be deemed
to be a payment by the Company pursuant to this Section 2.12 and shall be
applied by the Trustee to pay, when due, principal of, premium, if any, and
interest on the related series of Notes and, to the extent so applied, shall
satisfy the Company's obligations on such Notes. The Company shall cause payment
to be made to the Trustee of principal of, premium, if any, and interest on a
series of Senior Note Mortgage Bonds in a manner and at a time that will enable
the
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Trustee to make payments when due, of the principal of, premium, if any, and
interest on the related series of Notes.
Section 2.13. Notes Issuable In The Form Of A Global Note.
(a) If the Company shall establish pursuant to Section 2.5 hereof that
the Notes of a particular series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 2.5 hereof and the Company Order delivered to
the Trustee thereunder, authenticate and deliver such Global Note or Notes,
which (i) shall represent, shall be denominated in an amount equal to the
aggregate principal amount of, and shall have the same terms as, the outstanding
Notes of such series to be represented by such Global Note or Notes, (ii) shall
be registered in the name of the Depository or its nominee, (iii) shall be
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Note is a Global Note registered in the name of the Depository (referred
to herein) or a nominee thereof and, unless and until it is exchanged in whole
or in part for the individual Notes represented hereby, this Global Note may not
be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. Unless this
Global Note is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York), to the trustee 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., 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" or such other legend as may be required by the rules and
regulations of the Depository.
(b) Notwithstanding any other provision of Section 2.6 hereof or of
this Section 2.13, unless the terms of a Global Note expressly permit such
Global Note to be exchanged in whole or in part for individual Notes, a Global
Note may be transferred, in whole but not in part, only as described in the
legend thereto.
(c) (i) If at any time the Depository for a Global Note notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Note or if at any time the Depository for the Global Note shall no longer be
eligible or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor Depository with respect to such Global Note. If a successor Depository
for such Global Note is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.5(c)(vi) hereof shall no longer be
effective with respect to the series of Notes evidenced by such Global Note and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Notes of such series in exchange
for such Global Note, shall authenticate and deliver, individual Notes of such
series of like tenor and terms in definitive form in an aggregate principal
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amount equal to the principal amount of the Global Note in exchange for such
Global Note. The Trustee shall not be charged with knowledge or notice of the
ineligibility of a Depository unless a responsible officer assigned to and
working in its corporate trustee administration department shall have actual
knowledge thereof.
(ii) The Company may at any time and in its sole discretion
determine that all outstanding (but not less than all) Notes of a
series issued or issuable in the form of one or more Global Notes shall
no longer be represented by such Global Note or Notes. In such event
the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate and deliver
individual Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such Global
Note or Notes in exchange for such Global Note or Notes.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate
and deliver individual Notes in definitive registered form in
authorized denominations. Upon the exchange of a Global Note for
individual Notes, such Global Note shall be canceled by the Trustee.
Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations
as the Depository for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Notes to the Depository for
delivery to the persons in whose names such Notes are so registered, or
if the Depository shall refuse or be unable to deliver such Notes, the
Trustee shall deliver such Notes to the persons in whose names such
Notes are registered, unless otherwise agreed upon between the Trustee
and the Company, in which event the Company shall cause the Notes to be
delivered to the persons in whose names such Notes are registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depository but not prior to the
first Interest Payment Date of the respective Global Notes, the Depository shall
be required to surrender any two or more Global Notes which have identical
terms, including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated at
least 30 days prior to any Interest Payment Date applicable to any of the Global
Notes surrendered to the Trustee. Upon any exchange of any Global Note with two
or more Original Issue Dates, whether pursuant to this Section or pursuant to
Section 2.6 or Section 3.3 hereof, the aggregate principal amount of the Notes
with a particular Original Issue Date shall be the same
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before and after such exchange, after giving effect to any retirement of
Notes and the Original Issue Dates applicable to such Notes occurring in
connection with such exchange.
ARTICLE III.
REDEMPTION OF NOTES
Section 3.1. Applicability Of Article. Such of the Notes as are, by
their terms, redeemable prior to their stated maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article III.
Section 3.2. Notice Of Redemption; Selection Of Notes.
(a) The election of the Company to redeem any Notes shall be evidenced
by a Board Resolution which shall be given with notice of redemption to the
Trustee at least 45 days (or such shorter period acceptable to the Trustee in
its sole discretion) prior to the redemption date specified in such notice.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part shall be given by the Trustee, in the manner provided in
Section 15.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give such notice,
or any defect in such notice, to the Holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price at which such Notes are to be
redeemed, and shall state that payment of the redemption price of such Notes or
portion thereof to be redeemed will be made upon surrender of such Notes at such
places of redemption, that interest accrued to the date fixed for redemption
will be paid as specified in such notice, and that from and after such date
interest thereon shall cease to accrue. If less than all of a series of Notes
having the same terms are to be redeemed, the notice shall specify the Notes or
portions thereof to be redeemed. If any Note is to be redeemed in part only, the
notice which relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Note, a new Note or Notes having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or Company
Order under Section 2.5 hereof, if less than all of a series of Notes is to be
redeemed, the Trustee shall select in such manner as it shall deem appropriate
and fair in its discretion the particular Notes to be redeemed in whole or in
part and shall thereafter promptly notify the Company in writing of the Notes so
to be redeemed. If less than all of a series of Notes represented by a Global
Note is to
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be redeemed, the particular Notes or portions thereof of such series to be
redeemed shall be selected by the Depository for such series of Notes in such
manner as the Depository shall determine. Notes shall be redeemed only in
denominations of $1,000, provided that any remaining principal amount of a
Note redeemed in part shall be a denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption the
Company shall not have irrevocably directed the Trustee to apply funds deposited
with the Trustee or held by it and available to be used for the redemption of
Notes to redeem all the Notes called for redemption, such notice, at the
election of the Company, may state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption and that
such notice shall be of no effect unless such moneys are so received before such
date.
Section 3.3. Payment Of Notes On Redemption; Deposit Of Redemption Price.
(a) If notice of redemption for any Notes shall have been given as
provided in Section 3.2 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.2(e) hereof, such Notes or
portions of Notes called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such Notes.
Interest on the Notes or portions thereof so called for redemption shall cease
to accrue and such Notes or portions thereof shall be deemed not to be entitled
to any benefit under this Indenture except to receive payment of the redemption
price together with interest accrued thereon to the date fixed for redemption.
Upon presentation and surrender of such Notes at such a place of payment in such
notice specified, such Notes or the specified portions thereof shall be paid and
redeemed at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.2 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.2(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date and at the places
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption of such Notes, and interest on the
Notes or portions thereof so called for redemption shall cease to accrue and
such Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price together
with interest accrued thereon to the date fixed for redemption; provided that,
in each case, the Company shall have deposited with the Trustee or a paying
agent on or prior to such redemption date an amount sufficient to pay the
redemption price together with interest accrued to the date fixed for
redemption. Upon the Company making such deposit and, upon presentation and
surrender of such Notes at such a place of payment in such notice specified,
such Notes or the specified portions thereof shall be paid and redeemed at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption. If the Company shall not make such deposit on or prior to
the redemption date, the notice of redemption shall be of no force and effect
and the principal on such Notes or specified portions thereof shall continue to
bear interest as if the notice of redemption had not been given.
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(c) No notice of redemption of Notes shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Notes has been mailed, the Company shall redeem such Notes but only if
funds sufficient for that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for such purpose, and
(2) that notices of redemption of all outstanding Notes may be given during the
continuance of an Event of Default.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a new Note or
Notes of authorized denominations in aggregate principal amount equal to, and
having the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV.
SENIOR NOTE MORTGAGE BONDS
Section 4.1. Delivery Of Initial Series Of Senior Note Mortgage Bonds.
Subject to the provisions of Section 4.11 and Article V hereof, the Company
hereby (a) delivers to the Trustee, in connection with the initial issuance of a
series of Notes hereunder in an aggregate principal amount not to exceed
$_______, Senior Note Mortgage Bonds bearing the designation "First Mortgage
Bonds, Senior Note Series A" in the aggregate principal amount of $_________,
fully registered in the name of the Trustee, in trust for the benefit of the
Holders from time to time of the Notes issued under this Indenture as security
for any and all obligations of the Company under the Notes, including, but not
limited to, (1) the full and prompt payment of the principal of and premium, if
any, on the Notes when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the Notes, either
at the stated maturity thereof, upon acceleration of the maturity thereof or
upon redemption, and (2) the full and prompt payment of any interest on the
Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes and (b) delivers to the
Trustee the certificate of the Expert required by Section 4.5 hereof.
Section 4.2. Receipt. The Trustee acknowledges receipt of the Senior
Note Mortgage Bonds and Expert certificate described in Section 4.1 hereof.
Section 4.3. Senior Note Mortgage Bonds Held By The Trustee. The
Trustee, as a Holder of Senior Note Mortgage Bonds, shall attend any meeting of
Bondholders under the Mortgage Indenture as to which it receives due notice, or,
at its option, shall deliver its proxy in connection therewith. Either at such
meeting, or otherwise where consent of Holders of First Mortgage Bonds issued
under the Mortgage Indenture is sought without a meeting, the Trustee shall vote
all of the Senior Note Mortgage Bonds held by it, or shall consent or withhold
its consent with respect thereto, as directed by the Holders of not less than a
majority in the aggregate principal amount of the outstanding Notes; provided,
however, the Trustee shall not vote as such Holder of any particular series of
Senior Note Mortgage Bonds in favor of, or give its consent to, any
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action which, in the Trustee's opinion, would materially adversely affect
such series of Senior Note Mortgage Bonds in a manner not shared generally by
all other Senior Note Mortgage Bonds, except upon notification by the Trustee
to the Noteholders of the related series of Notes of such proposal and
consent thereto of the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes of such series.
Section 4.4. No Transfer Of Senior Note Mortgage Bonds; Exception.
Except as required to effect an assignment to a successor trustee under this
Indenture or pursuant to Section 4.5 or Section 4.8 hereof, the Trustee shall
not sell, assign or transfer the Senior Note Mortgage Bonds and the Company
shall issue stop transfer instructions to the Mortgage Trustee and any transfer
agent under the Mortgage Indenture to effect compliance with this Section 4.4.
Section 4.5. Delivery To The Company Of All Senior Note Mortgage
Bonds. When the obligation of the Company to make payment with respect to the
principal of and premium, if any, and interest on the Senior Note Mortgage Bonds
shall be satisfied or deemed satisfied pursuant to Section 4.11 or Section
5.1(a) hereof, the Trustee shall, upon written request of the Company and
receipt of the certificate of the Expert described in Section 4.6(b) hereof (if
such certificate is then required by Section 4.6(b) hereof), deliver to the
Company without charge therefor all of the Senior Note Mortgage Bonds, together
with such appropriate instruments of transfer or release as may be reasonably
requested by the Company. All Senior Note Mortgage Bonds delivered to the
Company in accordance with this Section 4.5 shall be delivered by the Company to
the Mortgage Trustee for cancellation.
Section 4.6. Fair Value Certificate. (a) Upon the delivery by the
Company to the Trustee of Senior Note Mortgage Bonds pursuant to Section 4.1 or
Section 4.9 hereof, the Company shall simultaneously therewith deliver to the
Trustee a certificate of an Expert (1) stating that it is familiar with the
provisions of such Senior Note Mortgage Bonds and of this Indenture; (2) stating
the principal amount of such Senior Note Mortgage Bonds so delivered, the stated
interest rate (or method of calculation of interest) of such Senior Note
Mortgage Bonds and the stated maturity date of such Senior Note Mortgage Bonds;
(3) identifying the Notes being issued contemporaneously therewith, and (4)
stating the fair value to the Company of such Senior Note Mortgage Bonds. If the
fair value to the Company of the Senior Note Mortgage Bonds so delivered, as
described in the certificate to be delivered pursuant to this Section 4.6(a),
both (l) is equal to or exceeds (A) $25,000 and (B) 1% of the principal amount
of the Notes outstanding at the date of delivery of such Senior Note Mortgage
Bonds and (2) together with the fair value to the Company, as described in the
certificates to be delivered pursuant to this Section 4.6(a), of all other
Senior Note Mortgage Bonds delivered to the Trustee since the commencement of
the then current calendar year, is equal to or exceeds 10% of the principal
amount of the Notes outstanding at the date of delivery of such Senior Note
Mortgage Bonds, then the certificate required by this Section 4.6(a) shall (1)
be delivered by an Expert who shall be independent of the Company and
satisfactory to the Trustee in its reasonable judgment and (2) shall, in
addition to the certifications described above, state the fair value to the
Company of all Senior Note Mortgage Bonds delivered to the Trustee pursuant to
Section 4.9 hereof since the commencement of the then current year as to which a
certificate was not delivered by an Expert independent of the Company.
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(b) If Senior Note Mortgage Bonds are delivered or surrendered to
the Company pursuant to Section 4.5 or 4.8 hereof, the Company shall
simultaneously therewith deliver to the Trustee a certificate of an Expert (1)
stating that it is familiar with the provisions of such Senior Note Mortgage
Bonds and of this Indenture, (2) stating the principal amount of such Senior
Note Mortgage Bonds so delivered, the stated interest rate (or method of
calculation of interest) of such Senior Note Mortgage Bonds and the stated
maturity date of such Senior Note Mortgage Bonds, (3) if applicable, identifying
the Notes, the payment of the interest on and principal of which has been
discharged hereunder, and (4) stating that such delivery and release will not
impair the lien of this Indenture in contravention of the provisions of this
Indenture. If, prior to the Release Date, the fair value of the Senior Note
Mortgage Bonds so delivered and released, as described in the certificate to be
delivered pursuant to this Section 4.6(b), both (l) is equal to or exceeds (A)
$25,000 and (B) 1% of the principal amount of the outstanding Notes at the date
of release of such Senior Note Mortgage Bonds and (2) together with the fair
value, as described in the certificates to be delivered pursuant to this Section
4.6(b), of all other Senior Note Mortgage Bonds released from the lien of this
Indenture since the commencement of the then current calendar year, is equal to
or exceeds 10% of the principal amount of the Notes outstanding at the date of
release of such Senior Note Mortgage Bonds, then the certificate required by
this Section 4.6(b) shall be delivered by an Expert who shall be independent of
the Company and satisfactory to the Trustee in its reasonable judgment.
If, in connection with a delivery or release of outstanding Senior Note
Mortgage Bonds, the Company provides to the Trustee an Opinion of Counsel
stating that the certificate described by this Section 4.6 is not required by
law, such certificate shall not be required to be delivered hereunder in
connection with such delivery or release.
Section 4.7. Further Assurances. The Company, at its own expense,
shall do such further lawful acts and things, and execute and deliver such
additional conveyances, assignments, assurances, agreements and instruments, as
may be necessary in order to better assign, assure and confirm to the Trustee
its interest in the Senior Note Mortgage Bonds and for maintaining, protecting
and preserving such interest.
Section 4.8. Exchange And Surrender Of Senior Note Mortgage Bonds. At
any time at the written direction of the Company, the Trustee shall surrender to
the Company all or part of the Senior Note Mortgage Bonds in exchange for Senior
Note Mortgage Bonds equal in aggregate outstanding principal amounts to, in
different denominations than but of the same series and with all other terms
identical to, the Senior Note Mortgage Bonds so surrendered to the Company. In
addition, at any time a Note shall cease to be entitled to any lien, benefit or
security under this Indenture pursuant to Section 5.1(b) hereof, the Trustee
shall surrender an equal principal amount of the related series of Senior Note
Mortgage Bonds, subject to the limitations of this Section 4.8, to the Company
for cancellation. The Trustee shall, together with such Senior Note Mortgage
Bonds, deliver to the Company such appropriate instruments of transfer or
release as the Company may reasonably request. Prior to the surrender required
by this paragraph, the Trustee shall receive from the Company the following, and
(subject to Section 9.1 hereof) shall be fully protected in relying upon, (a) an
Officers' Certificate stating (i) the aggregate outstanding principal amount of
the Senior Note Mortgage Bonds of the series surrendered by the Trustee,
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after giving effect to such surrender, (ii) the aggregate outstanding
principal amount of the related series of Notes, (iii) that the surrender of
the Senior Note Mortgage Bonds will not result in any default under this
Indenture, and (iv) that any Senior Note Mortgage Bonds to be received in
exchange for the Senior Note Mortgage Bonds being surrendered comply with the
provisions of this Section.
The Company shall not be permitted to cause the surrender or exchange of all
or any part of a series of Senior Note Mortgage Bonds contemplated in this
Section, if, after such surrender or exchange, the aggregate outstanding
principal amount of the related series of Notes would exceed the aggregate
outstanding principal amount of such series of Senior Note Mortgage Bonds
held by the Trustee. Any Senior Note Mortgage Bonds received by the Company
pursuant to this Section 4.8 shall be delivered to the Mortgage Trustee for
cancellation.
Section 4.9. Acceptance Of Additional Senior Note Mortgage Bonds. Upon the
issuance of a series of Notes hereunder (other than the initial series of
Notes referred to in Section 4.1 hereof) at any time prior to the Release
Date, the Company shall deliver to the Trustee in trust for the benefit of
the Holders of the Notes as described in Section 4.11 hereof, and the Trustee
shall accept therefor, a related series of Senior Note Mortgage Bonds
registered in the name of the Trustee conforming to the requirements of
Section 4.10 hereof.
Section 4.10. Terms Of Senior Note Mortgage Bonds. Each series of
Senior Note Mortgage Bonds delivered to the Trustee pursuant to Section 4.1 or
Section 4.9 hereof shall have the same stated rate or rates of interest (or
interest calculated in the same manner), Interest Payment Dates, stated maturity
date and redemption provisions, and shall be in the same aggregate principal
amount, as the related series of Notes being issued.
Section 4.11. Senior Note Mortgage Bonds As Security For Notes. Until
the Release Date and subject to Article V hereof, Senior Note Mortgage Bonds
delivered to the Trustee, for the benefit of the Holders of the Notes, shall
constitute part of the trust estate and for any and all obligations of the
Company under the Notes, including, but not limited to (1) the full and prompt
payment of the principal of and premium, if any, on such Notes when and as the
same shall become due and payable in accordance with the terms and provisions of
this Indenture or the Notes, either at the stated maturity thereof, upon
acceleration of the maturity thereof or upon redemption, and (2) the full and
prompt payment of any interest on such Notes when and as the same shall become
due and payable in accordance with the terms and provisions of this Indenture or
the Notes.
Notwithstanding anything in this Indenture to the contrary, from
and after the Release Date, the obligation of the Company to make payment
with respect to the principal of and premium, if any, and interest on the
Senior Note Mortgage Bonds shall be deemed satisfied and discharged as
provided in the supplemental trust indenture or indentures to the Mortgage
Indenture creating such Senior First Mortgage Bonds and the Senior Note
Mortgage Bonds shall cease to secure in any manner Notes theretofore or
subsequently issued. From and after the Release Date, any conditions to the
issuance of Notes that refer or relate to Senior Note Mortgage Bonds or the
Mortgage Indenture shall be inapplicable. Notice of the occurrence of the
Release
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Date shall be given by the Trustee to the Holders of the Notes in the manner
provided in Section 15.10 hereof not later than 30 days after the Company
notifies the Trustee of the occurrence of the Release Date.
ARTICLE V.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.1. Satisfaction And Discharge.
(a) If at any time:
(1) the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on all the outstanding
Notes, as and when the same shall have become due and payable,
(2) the Company shall have delivered to the Trustee for
cancellation all outstanding Notes, or
(3) the Company shall have irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds the entire
amount in (A) cash, (B) U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as will insure
the availability of cash, or (C) a combination of cash and U.S.
Government Obligations, in any case sufficient, without reinvestment,
as certified by an independent public accounting firm of national
reputation in a written certification delivered to the Trustee, to pay
at maturity or the applicable redemption date (provided that notice of
redemption shall have been duly given or irrevocable provision
satisfactory to the Trustee shall have been duly made for the giving of
any notice of redemption) all outstanding Notes, including principal
and any premium and interest due or to become due to such date of
maturity, as the case may be and, unless all outstanding Notes are to
be due within 90 days of such deposit by redemption or otherwise, shall
also deliver to the Trustee an Opinion of Independent Counsel to the
effect that the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or similar pronouncement by
the Internal Revenue Service or that there has been a change of law, in
either case to the effect that the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance or discharge of the Indenture,
and if, in any such case, the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to
be of further effect (except as to (i) rights of registration of transfer and
exchange of Notes, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal
thereof, and any premium and interest thereon, upon the original stated due
dates therefor or upon the applicable redemption date (but not upon acceleration
of maturity) from the moneys and U.S. Government Obligations held by the Trustee
pursuant to Section 5.2 hereof, (iv) the rights
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and immunities of the Trustee hereunder, (v) the rights of the Holders of
Notes as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, (vi) the obligations and rights of
the Trustee and the Company under Section 5.4 hereof, and (vii) the duties of
the Trustee with respect to any of the foregoing), and the Company shall be
deemed to have paid and discharged the entire indebtedness represented by,
and its obligations under, the Notes, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
and the Trustee shall at the request of the Company return to the Company all
Senior Note Mortgage Bonds and all other property and money held by it under
this Indenture and determined by it from time to time in accordance with the
certification pursuant to this Section 5.1(a)(3) to be in excess of the
amount required to be held under this Section.
If the Notes are deemed to be paid and discharged pursuant to Section
5.1(a)(3) hereof, within 15 days after those Notes are so deemed to be paid and
discharged, the Trustee shall cause a written notice to be given to each Holder
in the manner provided by Section 15.10 hereof. The notice shall:
(i) state that the Notes are deemed to be paid and
discharged;
(ii) set forth a description of any U.S. Government
Obligations and cash held by the Trustee as described above; and
(iii) if any Notes will be called for redemption, specify the
date or dates on which those Notes are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.6 hereof, shall
survive.
If the Notes are deemed paid and discharged pursuant to this Section
5.1, the obligation of the Company to make payment with respect to the principal
of and premium, if any, and interest on the Senior Note Mortgage Bonds shall be
satisfied and discharged and the Senior Note Mortgage Bonds shall cease to
secure the Notes in any manner.
(b) If the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on any Note, as and when the same shall
have become due and payable or the Company shall have delivered to the Trustee
for cancellation any outstanding Note, such Note shall cease to be entitled to
any lien, benefit or security under this Indenture. Upon a Note of any series
ceasing to be entitled to any lien, benefit or security under this Indenture,
the obligation of the Company to make payment with respect to principal of and
premium, if any, and interest on a principal amount of the related series of
Senior Note Mortgage Bonds equal to the principal amount of such Note shall be
satisfied and discharged and such portion of the principal amount of such Senior
Note Mortgage Bonds shall cease to secure the Notes in any manner.
Section 5.2. Deposited Moneys To Be Held In Trust By Trustee. All moneys
and U.S. Government Obligations deposited with the Trustee pursuant to
Section 5.1 hereof, shall be held
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in trust and applied by it to the payment, either directly or through any
paying agent (including the Company if acting as its own paying agent), to
the Holders of the particular Notes for the payment or redemption of which
such moneys and U.S. Government Obligations have been deposited with the
Trustee of all sums due and to become due thereon for principal and premium,
if any, and interest.
Section 5.3. Paying Agent To Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Notes (other than the Trustee) shall, upon written demand by an Authorized
Agent, be repaid to the Company or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to
such moneys.
Section 5.4. Return Of Unclaimed Moneys. Any moneys deposited with or paid to
the Trustee for payment of the principal of or any premium or interest on any
Notes and not applied but remaining unclaimed by the Holders of such Notes
for two years after the date upon which the principal of or any premium or
interest on such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on written demand by
an Authorized Agent, and all liability of the Trustee shall thereupon cease;
and any Holder of any of such Notes shall thereafter look only to the Company
for any payment which such Holder may be entitled to collect.
ARTICLE VI.
PARTICULAR COVENANTS OF THE COMPANY
Section 6.1. Payment Of Principal, Premium And Interest. The Company
covenants and agrees for the benefit of the Holders of the Notes that it will
duly and punctually pay or cause to be paid the principal of and any premium
and interest on each of the Notes at the places, at the respective times and
in the manner provided in such Notes or in this Indenture.
Section 6.2. Office For Notices And Payments, Etc. So long as any of the
Notes remain outstanding, the Company at its option may cause to be
maintained in the Borough of Manhattan, the City and State of New York, or
elsewhere, an office or agency where the Notes may be presented for
registration of transfer and for exchange as in this Indenture provided, and
where, at any time when the Company is obligated to make a payment of
principal and premium upon Notes, the Notes may be surrendered for payment,
and may maintain at any such office or agency and at its principal office an
office or agency where notices and demands to or upon the Company in respect
of the Notes or of this Indenture may be served. The designation of any such
office or agency shall be made by Company Order pursuant to Section 2.5
hereof or at any subsequent time pursuant to this Section 6.2 hereof. The
Company will give to the Trustee written notice of the location of each such
office or agency and of any change of location thereof. If the Company shall
fail to give such notice of the location or of any change in the location of
any such office or agency, presentations may be made and notices and demands
may be served at the corporate trust office of the Trustee.
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Section 6.3. Appointments To Fill Vacancies In Trustee's Office. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 9.11 hereof, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section 6.4. Provision As To Paying Agent. The Trustee shall be the paying
agent for the Notes and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself).
Whenever the Company shall appoint an additional paying agent, it shall cause
such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to this Section 6.4:
(1) that it will hold in trust for the benefit of the Holders
and the Trustee all sums held by it as such agent for the payment of
the principal of and any premium or interest on the Notes (whether such
sums have been paid to it by the Company or by any other obligor on
such Notes) in trust for the benefit of the Holders of such Notes;
(2) that it will give to the Trustee notice of any failure by
the Company (or by any other obligor on such Notes) to make any payment
of the principal of and any premium or interest on such Notes when the
same shall be due and payable; and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect
to any Notes, it will, on or before each due date of the principal of and any
premium or interest on such Notes, set aside, segregate and hold in trust for
the benefit of the Holders of such Notes a sum sufficient to pay such principal
and any premium or interest so becoming due and will notify the Trustee of any
failure by it to take such action and of any failure by the Company (or by any
other obligor on such Notes) to make any payment of the principal of and any
premium or interest on such Notes when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it
will, on or prior to each due date of the principal of (and premium, if any) or
interest, if any, on any Notes, deposit with such paying agent a sum sufficient
to pay the principal (and premium, if any) or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, if any, and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee of any failure on its
part to so act.
Anything in this Section 6.4 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 6.4, such sums to be held by the Trustee upon the
trusts herein contained.
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Anything in this Section 6.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 6.4 is subject
to Sections 5.3 and 5.4 hereof.
Section 6.5. Opinions Of Counsel. The Company will cause this Indenture, any
indentures supplemental to this Indenture, and any financing or continuation
statements to be promptly recorded and filed and rerecorded and refiled in
such a manner and in such places, as may be required by law in order fully to
preserve, protect and perfect the security of the Noteholders and all rights
of the Trustee, and shall deliver to the Trustee:
(a) promptly after the execution and delivery of this Indenture and of
any indenture supplemental to this Indenture but prior to the Release Date, an
Opinion of Counsel either stating that, in the opinion of such counsel, this
Indenture or such supplemental indenture and any financing or continuation
statements have been properly recorded and filed so as to make effective and to
perfect the interest of the Trustee intended to be created by this Indenture for
the benefit of the Holders from time to time of the Notes in the Senior Note
Mortgage Bonds, and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to perfect or make such
interest effective and stating what, if any, action of the foregoing character
may reasonably be expected to become necessary prior to the next succeeding May
1 to maintain, perfect and make such interest effective; and
(b) on or before May 1 of each year, beginning in 1999, and prior to
the Release Date, an Opinion of Counsel either stating that in the opinion of
such counsel such action has been taken, since the date of the most recent
Opinion of Counsel furnished pursuant to this Section 6.5(b) or the first
Opinion of Counsel furnished pursuant to Section 6.5(a) hereof, with respect to
the recording, filing, rerecording, or refiling of this Indenture, each
supplemental indenture and any financing or continuation statements, as is
necessary to maintain and perfect the interest of the Trustee intended to be
created by this Indenture for the benefit of the Holders from time to time of
the Notes in the Senior Note Mortgage Bonds, and reciting the details of such
action, or stating that in the opinion of such counsel no such action is
necessary to maintain and perfect such interest and stating what, if any, action
of the foregoing character may reasonably be expected to become necessary prior
to the next succeeding May 1 to maintain, perfect and make such security
interest effective.
Section 6.6. Certificates And Notice To Trustee. The Company shall, on or
before May 1 of each year, beginning in 1999, deliver to the Trustee a
certificate from its principal executive officer, principal financial officer
or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such party, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture. Upon the occurrence of a completed default (as
defined in the Mortgage Indenture) prior to the Release Date, the Company
shall promptly notify the Trustee of such event.
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ARTICLE VII.
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.1. Noteholder Lists.
(a) The Company shall furnish or cause to be furnished to the Trustee
semiannually, not later than 15 days after each Regular Record Date for each
Interest Payment Date that is not a maturity date and at such other times as
such Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company, or
any paying agents other than the Trustee, as to the names and addresses of the
Holders of Notes, obtained since the date as of which the next previous list, if
any, was furnished. Any such list may be dated as of a date not more than 15
days prior to the time such information is furnished or caused to be furnished
and need not include information received after such date; provided that as long
as the Trustee is the registrar for the Notes, no such list shall be required to
be furnished. The Trustee shall preserve any list provided to it pursuant to
this Section until such time as the Company or any paying agent, as applicable,
shall provide it with a more recent list.
(b) Within five business days after the receipt by the Trustee of a
written application by any three or more Holders stating that the applicants
desire to communicate with other Holders with respect to their rights under the
Indenture or under the Notes, and accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, and by reasonable
proof that each such applicant has owned a Note for a period of at least six
months preceding the date of such application, the Trustee shall, at its
election, either:
(i) afford to such applicants access to all information furnished
to or received by the Trustee pursuant to Section 7.1(a) hereof or, if
applicable, in its capacity as registrar to the Notes; or
(ii) inform such applicants as to the approximate number of Holders
according to the most recent information furnished to or received by the
Trustee under Section 7.1(a) hereof or if applicable in its capacity as
registrar for the Notes, and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each Holder of Notes a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written
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statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such material to all
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of a Note, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any paying agent nor any Authenticating Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
this Section.
Section 7.2. Securities And Exchange Commission Reports.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations, including, in the case of annual reports,
if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 15.5,
as to compliance with conditions or covenants, compliance with which is subject
to verification by accountants; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
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Section 7.3. Reports By The Trustee.
(a) Within 60 days after July 15 of each year, beginning with the July
15 after the first issuance of Notes hereunder, the Trustee shall transmit by
mail a brief report dated as of such date that complies with Section 313(a) of
the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at
the time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Notes are listed and also with the Commission. The
Company will notify the Trustee promptly upon the listing of such Notes on any
stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
7.3(b) and (c) hereof, to all Holders of Notes whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 7.1 hereof; and
(4) at the time such report is transmitted to the Holders of
the Notes, to each exchange on which Notes are listed and also with the
Commission.
ARTICLE VIII.
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
Section 8.1 Events Of Default.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
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(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall become due and payable
and continuance of such default for five days;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Notes or in this Indenture for a period of 90
days after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the Trustee
by registered mail, or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Notes at the time
outstanding;
(4) prior to the Release Date, a completed default (as defined
in the Mortgage Indenture) has occurred and is continuing, and the
Mortgage Trustee, the Company or Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding shall have given
written notice thereof to the Trustee;
(5) the entry of a decree or order by a court having
jurisdiction over the Company for relief in respect of the Company
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the
Company or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the filing by the Company with respect to itself or its
property of a petition or answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Company or of any substantial part of its property, or the failure
of the Company generally to pay its debts as such debts become due, or
the taking of corporate action by the Company to effectuate any such
action;
then and in each and every such case, unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of a majority in aggregate principal amount of the Notes then
outstanding, by notice in writing to the Company (and to the Trustee if given
by Noteholders), may declare the principal of all the Notes to be due and
payable immediately and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the
Notes contained to the contrary notwithstanding and, upon the Notes being
declared to be due and payable, the Trustee can immediately file with the
Mortgage Trustee a written demand for redemption of all Senior Note Mortgage
Bonds pursuant to the applicable provisions of the supplemental indentures to
the Mortgage Indenture.
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This provision, however, is subject to the condition that if, at any time
after the principal of the Notes shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided and prior to the
mailing to the Trustee by the Mortgage Trustee of a firm, valid and
unconditional notice to the Trustee of the acceleration of all of the First
Mortgage Bonds issued and outstanding under the Mortgage Indenture, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all of the Notes and the principal
of and any premium on any and all Notes which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest, to
the extent that payment of such interest is enforceable under applicable law,
and on such principal and applicable premium at the rate borne by the Notes
to the date of such payment or deposit) and all sums paid or advanced by the
Trustee hereunder, the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 9.6 hereof, and any and all defaults under this
Indenture, other than the non-payment of principal of and accrued interest on
Notes which shall have become due solely by acceleration of maturity, shall
have been cured or waived (including any defaults under the Mortgage
Indenture, as evidenced by notice thereof from the Mortgage Trustee to the
Trustee) -- then and in every such case such payment or deposit shall cause
an automatic waiver of the Event of Default and its consequences (including
if given the written demand for redemption of all Senior Note Mortgage Bonds)
and shall cause an automatic rescission and annulment of the acceleration of
the Notes; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.
(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 8.2 Payment Of Notes On Default; Suit Therefor.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of interest upon
any of the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any of the Notes as and when the same shall have become due and
payable whether at the stated maturity thereof, upon redemption thereof
(provided that such redemption is not conditioned upon the deposit of
sufficient moneys for such redemption), upon declaration of
acceleration or otherwise.
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then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Notes, the whole amount that then shall have so
become due and payable on all such Notes for principal and any premium or
interest, or both, as the case may be, with interest upon the overdue principal
and any premium and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue installments of interest at the rate
borne by the Notes; and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, any expenses or
liabilities incurred by the Trustee hereunder other than through its negligence
or bad faith, and any other amounts due the Trustee under Section 9.6 hereof.
(b) If the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, including, prior to the
Release Date, to exercise any rights to that end it may have as a holder of
Senior Note Mortgage Bonds, and may enforce any such judgment or final decree
against the Company or any other obligor on the Notes and collect in the manner
provided by law out of the property of the Company or any other obligor on such
series of Notes wherever situated, the moneys adjudged or decreed to be payable.
(c) If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under the United
States Bankruptcy Code or any other applicable law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other
obligor, or in the case of any similar judicial proceedings relative to the
Company or other obligor upon the Notes, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to this Section 8.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and any premium and interest owing and
unpaid in respect of the Notes, and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including, prior to the
Release Date, any claims of the Trustee as holder of Senior Note Mortgage Bonds
and including any amounts due to the Trustee under Section 9.6 hereof) and of
the Holders of Notes allowed in such judicial proceedings relative to the
Company or any other obligor on the Notes, its or their creditors, or its or
their property, and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses.
(d) All claims and rights of action under this Indenture, or under any
of the Notes, may be enforced by the Trustee without the possession of any of
the Notes, or the production thereof in any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the Notes in respect
of which such action was taken.
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(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent or to accept or adopt on behalf of any Noteholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Noteholder in any such proceeding.
Section 8.3. Application Of Moneys Collected By Trustee. Any moneys collected
by the Trustee with respect to any of the Notes pursuant to this Article
shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys, upon presentation of the several
Notes, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
9.6 hereof;
SECOND: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Notes, in the order of the maturity of the
installments of such interest, with interest (to the extent allowed by law
and to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the persons entitled thereto, and then to the
payment to the Holders entitled thereto of the unpaid principal of and
applicable premium on any of the Notes which shall have become due (other
than Notes previously called for redemption for the payment of which moneys
are held pursuant to the provisions of this Indenture), whether at stated
maturity or by redemption, in the order of their due dates, beginning with
the earliest due date, and if the amount available is not sufficient to pay
in full all Notes due on any particular date, then to the payment thereof
ratably, according to the amounts of principal and applicable premium due on
that date, to the Holders entitled thereto, without any discrimination or
privilege;
THIRD: If the principal of the outstanding Notes in respect of which such
moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Notes for principal and any premium and interest thereon, with interest on
the overdue principal and any premium and (to the extent allowed by law and
to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Notes; and in case
such moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and any premium
and interest without preference or priority of principal and any premium over
interest, or of interest over principal and any premium or of any installment
of interest over any other installment of interest, or of any Note over any
other Note, ratably to the aggregate of such principal and any premium and
accrued and unpaid interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same,
or as a court of competent jurisdiction may determine.
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Section 8.4. Proceedings By Noteholders.
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Note and of the continuance
thereof, as hereinabove provided, and unless also Noteholders of a majority in
aggregate principal amount of the Notes then outstanding affected by such Event
of Default shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and any
premium and interest on such Note, on or after the respective due dates
expressed in such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
Section 8.5. Proceedings By Trustee. In case of an Event of Default hereunder
the Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture, including, prior to the Release Date, its
rights as holder of the Senior Note Mortgage Bonds, by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or
by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted to it under this Indenture, or to
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 8.6. Remedies Cumulative And Continuing. All powers and remedies
given by this Article VIII to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any powers
and remedies hereof or of any other powers and remedies available to the
Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of
any Holder of any of the Notes in exercising any right or power accruing upon
any default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to Section 8.4 hereof, every power and
remedy given by this Article VIII or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
Section 8.7. Direction Of Proceedings And Waiver Of Defaults By Majority Of
Noteholders. The Holders of a majority in aggregate principal amount of the
Notes at the time
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outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee; provided, that
(subject to Section 9.1 hereof) the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees or
responsible officers shall determine that the action or proceeding so
directed would involve the Trustee in personal liability or would be unduly
prejudicial to the rights of Noteholders not joining in such directions. The
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of all of the Holders of the Notes waive any past
default or Event of Default hereunder and its consequences except a default
in the payment of principal of or any premium or interest on the Notes. Upon
any such waiver the Company, the Trustee and the Holders of the Notes shall
be restored to their former positions and rights hereunder, respectively, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event
of Default hereunder shall have been waived as permitted by this Section 8.7,
said default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing.
Section 8.8. Notice Of Default. The Trustee shall, within 90 days after the
occurrence of a default, give to all Holders of the Notes, in the manner
provided in Section 15.10, notice of such default, unless such default shall
have been cured before the giving of such notice, the term "default" for the
purpose of this Section 8.8 being hereby defined to be any event which is or
after notice or lapse of time or both would become an Event of Default;
provided that, except in the case of default in the payment of the principal
of or any premium or interest on any of the Notes, or in the payment of any
sinking or purchase fund installments, the Trustee shall be protected in
withholding such notice if and so long as its board of directors or trustees,
executive committee, or a trust committee of directors or trustees or
responsible officers in good faith determines that the withholding of such
notice is in the interests of the Holders of the Notes. The Trustee shall not
be charged with knowledge of any Event of Default unless a responsible
officer of the Trustee assigned to the corporate trustee department of the
Trustee shall have actual knowledge of such Event of Default.
Section 8.9. Undertaking To Pay Costs. All parties to this Indenture agree,
and each Holder of any Note by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but this Section 8.9 shall not apply to
any suit instituted by the Trustee, or to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10%
in principal amount of the Notes outstanding, or to any suit instituted by
any Noteholder for the enforcement of the payment of the principal of or any
premium or
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interest on any Note on or after the due date expressed in such
Note or the applicable redemption date.
ARTICLE IX.
CONCERNING THE TRUSTEE
Section 9.1. Duties And Responsibilities Of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after
the curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
Section 8.7 hereof relating to the time,
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method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture.
Section 9.2. Reliance On Documents, Opinions, Etc. Except as otherwise
provided in Section 9.1 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders, pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred by such
exercise;
(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
outstanding Notes; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by this Indenture, the
Trustee may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; and
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(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
Section 9.3. No Responsibility For Recitals, Etc. The recitals contained
herein and in the Notes (except in the certificate of authentication) shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered
by the Trustee in conformity with this Indenture. The Trustee shall not be
responsible for recording or filing this Indenture, any supplemental
indenture, or any financing or continuation statement in any public office at
any time or times.
Section 9.4. Trustee, Authenticating Agent, Paying Agent Or Registrar May Own
Notes. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Notes with
the same rights it would have if it were not Trustee, Authenticating Agent or
paying agent.
Section 9.5. Moneys To Be Held In Trust. Subject to Section 5.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
Section 9.6. Compensation And Expenses Of Trustee. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law
in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
agents, including any Authenticating Agents, and of all persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
or liability. The obligations of the Company under this Section 9.6 to
compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
any particular Notes.
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Section 9.7. Officers' Certificate As Evidence. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking,
suffering or omitting of any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such Officers' Certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under this Indenture in
reliance thereon.
Section 9.8. Conflicting Interest Of Trustee. The Trustee shall be subject
to and shall comply with the provisions of Section 310 of the TIA; provided
that, to the extent permitted by law, Norwest Bank Minnesota, National
Association shall not be deemed to have a conflicting interest for purposes
of Section 310(b) of the TIA because of its capacity as trustee under the
Company's pollution control and resource recovery bonds. Nothing in this
Indenture shall be deemed to prohibit the Trustee or the Company from making
any application permitted pursuant to such section.
Section 9.9. Existence And Eligibility Of Trustee. There shall at all times
be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia (or a corporation or other Person
permitted to act as trustee by the Commission), subject to supervision or
examination by such bodies and authorized under such laws to exercise
corporate trust powers and having a combined capital and surplus of at least
$150,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid authority,
then for the purposes of this Section 9.9, the combined capital and surplus
shall be deemed to be as set forth in its most recent report of condition so
published. No obligor upon the Notes or Person directly or indirectly
controlling, controlled by, or under common control with such obligor shall
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 9.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.10 hereof.
Section 9.10. Resignation Or Removal Of Trustee.
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon which such resignation
shall take effect, and such resignation shall take effect immediately upon the
later of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Notes or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would
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become an Event of Default, the Company may remove any Trustee upon written
notice to the Holder of each Note outstanding and the Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 9.9 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (2) the Trustee shall fail to comply with Section 9.8
hereof after written request therefor by the Company or any such Holder, or (3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Trustee may be removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee and either:
(1) signed by the President or any Vice President of the
Company and attested by the Secretary or an Assistant Secretary of the
Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of outstanding Notes or by their attorneys in fact
duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 9.11 hereof.
Section 9.11. Appointment Of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee to the Holder of each Note outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 9.11(a) hereof within 60 days after appointment shall be required, any
Noteholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 9.11 as a successor
Trustee shall be a bank or trust company eligible under Section 9.9 hereof and
qualified under Section 9.8 hereof.
Section 9.12. Acceptance By Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 9.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance,
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shall become vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to Section 9.6 hereof, execute and deliver an
instrument transferring to such successor Trustee all the rights and powers
of the Trustee so ceasing to act, including all right, title, and interest in
the Senior Note Mortgage Bonds. Upon request of any such successor Trustee,
the Company shall execute any and all instruments in writing in order more
fully and certainly to vest in and confirm to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
lien upon all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to Section 9.6 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 9.8 hereof and eligible under Section 9.9 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 9.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Notes as the names and addresses of such Holders
appear on the registry books.
Section 9.13. Succession By Merger, Etc.
(a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificates
of the Trustee shall have; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.14. Limitations On Rights Of Trustee As A Creditor.
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The Trustee shall be subject to, and shall comply with, the provisions
of Section 311 of the TIA.
Section 9.15. Authenticating Agent.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Notes in connection with transfers and exchanges under Sections 2.6, 2.7,
2.8, 2.13, 3.3, and 13.4 hereof, as fully to all intents and purposes as though
such Authenticating Agents had been expressly authorized by those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section 9.15 shall be deemed to be the authentication and delivery of such
Notes "by the Trustee." Any such Authenticating Agent shall be a bank or trust
company or other Person of the character and qualifications set forth in Section
9.9 hereof.
(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 Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 9.15, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time 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 under this Section 9.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
15.10, notice of such appointment to the Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 9.6 hereof.
(e) Sections 9.2, 9.3, 9.6, 9.7 and 9.9 hereof shall be applicable to
any Authenticating Agent.
ARTICLE X.
CONCERNING THE NOTEHOLDERS
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Section 10.1. Action By Noteholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Notes may take any action, the fact that at the time of taking
any such action the Holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Noteholders in person or by agent or proxy
appointed in writing, (b) by the record of such Noteholders voting in favor
thereof at any meeting of Noteholders duly called and held in accordance with
Article XI hereof, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Noteholders.
Section 10.2. Proof Of Execution By Noteholders.
(a) Subject to Sections 9.1, 9.2 and 11.5 hereof, proof of the
execution of any instruments by a Noteholder or the agent or proxy for such
Noteholder shall be sufficient if made in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The ownership of Notes shall be proved by the
register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided in Section 11.6 hereof.
Section 10.3. Who Deemed Absolute Owners. Subject to Sections 2.4(f) and 10.1
hereof, the Company, the Trustee, any paying agent and any Authenticating
Agent shall deem the person in whose name any Note shall be registered upon
the register for the Notes to be, and shall treat such person as, the
absolute owner of such Note (whether or not such Note shall be overdue) for
the purpose of receiving payment of or on account of the principal and
premium, if any, and interest on such Note, and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any
Authenticating Agent shall be affected by any notice to the contrary. All
such payments shall be valid and effectual to satisfy and discharge the
liability upon any such Note to the extent of the sum or sums so paid.
Section 10.4. Company-Owned Notes Disregarded. In determining whether the
Holders of the requisite aggregate principal amount of outstanding Notes have
concurred in any direction, consent or waiver under this Indenture, Notes
which are owned by the Company or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Notes
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination; provided that, for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Notes which the Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith to third
parties may be regarded as outstanding for the purposes of this Section 10.4
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to take action with respect to such Notes and that the
pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute
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as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
Section 10.5. Revocation Of Consents; Future Holders Bound. Except as may be
otherwise required in the case of a Global Note by the applicable rules and
regulations of the Depository, at any time prior to the taking of any action
by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action, any Holder of a
Note, which has been included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Trustee at
the corporate trust office of the Trustee and upon proof of ownership as
provided in Section 10.2(a) hereof, revoke such action so far as it concerns
such Note. Except as aforesaid, any such action taken by the Holder of any
Note shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Note and of any Notes issued in exchange,
substitution or upon registration of transfer therefor, irrespective of
whether or not any notation thereof is made upon such Note or such other
Notes.
Section 10.6. Record Date For Noteholder Acts. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after the record
date, but only the Noteholders of record at the close of business on the record
date shall be deemed to be Noteholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other act
by the Noteholders on the record date shall be deemed effective unless it shall
become effective pursuant to this Indenture not later than six months after the
record date. Any such record date shall be at least 30 days prior to the date of
the solicitation to the Noteholders by the Company.
ARTICLE XI.
NOTEHOLDERS' MEETING
Section 11.1. Purposes Of Meetings. A meeting of Noteholders may be called at
any time and from time to time pursuant to this Article XI for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article VIII;
(b) to remove the Trustee pursuant to Article IX;
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(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 13.2 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes, as the
case may be, under any other provision of this Indenture or under applicable
law.
Section 11.2. Call Of Meetings By Trustee. The Trustee may at any time call a
meeting of Holders of Notes to take any action specified in Section 11.1
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the
time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of the Notes that may
be affected by the action proposed to be taken at such meeting in the manner
provided in Section 15.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
Section 11.3. Call Of Meetings By Company Or Noteholders. If at any time the
Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Noteholders may determine the time and the place for such meeting and may
call such meeting to take any action authorized in Section 11.1 hereof, by
giving notice thereof as provided in Section 11.2 hereof.
Section 11.4. Qualifications For Voting. To be entitled to vote at any
meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by
an instrument in writing as proxy by a Holder of one or more such Notes. The
only Persons who shall be entitled to be present or to speak at any meeting
of Noteholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives (including employees) of the Trustee
and its counsel and any representatives (including employees) of the Company
and its counsel.
Section 11.5. Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Noteholders as
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provided in Section 11.3 hereof, in which case the Company or Noteholders
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting.
(c) Subject to Section 10.4 hereof, at any meeting each Noteholder or
proxy shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by such Noteholder; provided that no vote shall be cast or
counted at any meeting in respect of any Note ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Notes held by such chairman or instruments in
writing as aforesaid duly designating such chairman as the person to vote on
behalf of other Noteholders. At any meeting of Noteholders duly called pursuant
to Section 11.2 or 11.3 hereof, the presence of persons holding or representing
Notes in an aggregate principal amount sufficient to take action on any business
for the transaction for which such meeting was called shall constitute a quorum.
Any meeting of Noteholders duly called pursuant to Section 11.2 or 11.3 hereof
may be adjourned from time to time by the Holders of a majority in aggregate
principal amount of the Notes present in person or by proxy at the meeting,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 11.6. Voting. The vote upon any resolution submitted to any meeting
of Noteholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Notes or of their representatives by proxy and
the principal amount of Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate
of the proceedings of such meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 11.2 hereof. The record shall show
the aggregate principal amount of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee and the Trustee shall have the ballots taken at the
meeting attached to such duplicate. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
Section 11.7. Rights Of Trustee Or Noteholders Not Delayed. Nothing in this
Article XI shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Holders of Notes under any of the provisions of this Indenture or of the
Notes.
ARTICLE XII.
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CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
Section 12.1. Company May Consolidate, Etc. Only On Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
sell, or otherwise dispose all or substantially all of its assets unless the
corporation formed by such consolidation or into which the Company is merged
or the Person which receives all or substantially all of the assets pursuant
to such sale, transfer or other disposition (a) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and premium and interest on all of the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and (b) if such consolidation, merger, sale, transfer or other
disposition occurs prior to the Release Date, shall expressly assume, by an
indenture supplemental to the Mortgage Indenture, executed and delivered to
the Trustee and the Mortgage Trustee, in form satisfactory to the Trustee and
the Mortgage Trustee, the due and punctual payment of the principal of and
premium and interest on all of the Senior Note Mortgage Bonds and the
performance of every covenant of the Mortgage Indenture on the part of the
Company to be performed or observed. For purposes of this Article XII the
phrase "all or substantially all of its assets" shall mean 50% or more of the
total assets of the Company as shown on the balance sheet of the Company as
of the end of the calendar year immediately preceding the day of the year in
which such determination is made and nothing in this Indenture shall prevent
or hinder the Company from selling, transferring or otherwise disposing
during any calendar year (in one transaction or a series of transactions)
less than 50% of the amount of its total assets as shown on the balance sheet
of the Company as of the end of the immediately preceding calendar year.
Section 12.2. Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, transfer or other disposition of all or substantially
all of the assets of the Company in accordance with Section 12.1 hereof, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
ARTICLE XIII.
SUPPLEMENTAL INDENTURES
Section 13.1. Supplemental Indentures Without Consent Of Noteholders.
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or
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prejudicial to the interests of the Holders, for the purpose of
supplying any omission, curing any ambiguity, or curing, correcting
or supplementing any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Note outstanding created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Notes issued after the effective date of such change or
elimination;
(3) to establish the form of Notes as permitted by Section 2.1
hereof or to establish or reflect any terms of any Note determined
pursuant to Section 2.5 hereof;
(4) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Notes;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed
upon it by law;
(7) to specify further the duties and responsibilities of, and
to define further the relationships among the Trustee, any
Authenticating Agent and any paying agent;
(8) to add to the covenants of the Company for the benefit of
the Holders, to add to the security for the Notes or to surrender a
right or power conferred on the Company herein; and
(9) to make any other change that is not prejudicial to the
Trustee or the Holders.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.1 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Notes at the time outstanding, notwithstanding any of the provisions
of Section 13.2 hereof.
Section 13.2. Supplemental Indentures With Consent Of Noteholders.
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(a) With the consent (evidenced as provided in Section 10.1 hereof) of
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall:
(1) change the maturity date of any Note, or reduce the rate
or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or change the coin or
currency in which the principal of any Note or any premium or interest
thereon is payable, or change the date on which any Note may be
redeemed or repaid at the option of the holder thereof or adversely
affect the rights of the Noteholders to institute suit for the
enforcement of any payment of principal of or any premium or interest
on any Note, or impair the interest hereunder of the Trustee in the
Senior Note Mortgage Bonds, or prior to the Release Date, reduce the
principal amount of any series of Senior Note Mortgage Bonds to an
amount less than the principal amount of the related series of Notes or
alter the payment provisions of such Senior Note Mortgage Bonds in a
manner adverse to the Holders of the Notes, in each case without the
consent of the Holder of each Note so affected; or
(2) modify this Section 13.2(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to
any such supplemental indenture or to reduce the percentage of Notes,
the Holders of which are required to waive Events of Default, in each
case, without the consent of the Holders of all of the Notes then
outstanding.
(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 13.2, the Trustee shall give
notice in the manner provided in Section 15.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any
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defect therein shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 13.3. Compliance With Trust Indenture Act; Effect Of Supplemental
Indentures. Any supplemental indenture executed pursuant to this Article XIII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XIII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 13.4. Notation On Notes. Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article XIII may
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new Notes
so modified as approved by the Trustee and the Board of Directors with
respect to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Notes then
outstanding.
Section 13.5. Evidence Of Compliance Of Supplemental Indenture To Be
Furnished Trustee. The Trustee, subject to Sections 9.1 and 9.2 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies
with the requirements of this Article XIII.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.1. Indenture And Notes Solely Corporate Obligations. No recourse
for the payment of the principal of or any premium or interest on any Note or
any Senior Note Mortgage Bond, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company, contained in this Indenture, the Mortgage Indenture
or in any supplemental indenture, or in any Note or in any Senior Note
Mortgage Bond, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Notes.
54
<PAGE>
ARTICLE XV.
MISCELLANEOUS PROVISIONS
Section 15.1. Provisions Binding On Company's Successors. All the covenants,
stipulations, promises and agreements made by the Company in this Indenture
shall bind its successors and assigns whether so expressed or not.
Section 15.2. Official Acts By Successor Corporation. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of
the Company.
Section 15.3. Notices.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Noteholders
on the Company may be given or served by being deposited postage prepaid in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) at the principal executive offices of the Company, to the
attention of the Secretary. Any notice, direction, request or demand by any
Noteholder, the Company or the Mortgage Trustee to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the corporate trust office of the Trustee, Attention: Vice
President, Corporate Trust Department.
(b) The Company shall provide any notices required under this Indenture
by publication, but only to the extent that such publication is required by the
TIA, the rules and regulations of the Commission or any securities exchange upon
which any series of Notes is listed.
Section 15.4. Governing Law. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of Minnesota, and for all
purposes shall be construed in accordance with the laws of said State.
Section 15.5. Evidence Of Compliance With Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
55
<PAGE>
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 6.6 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such person knows, or in the exercise of
reasonable care should know, that the certificate or opinion of representations
with respect to such matters are erroneous. Any opinion of counsel delivered
hereunder may contain standard exceptions and qualifications satisfactory to the
Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinions or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
56
<PAGE>
Section 15.6. Business Days. Unless otherwise provided pursuant to Section
2.5(c) hereof, in any case where the date of maturity of the principal of or
any premium or interest on any Note or the date fixed for redemption of any
Note is not a Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and affect as if made on the date of
maturity or the date fixed for redemption, and, in the case of timely payment
thereof, no interest shall accrue for the period from and after such Interest
Payment Date or the date on which the principal of the Note is required to be
paid.
Section 15.7. Trust Indenture Act To Control. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the TIA, such required
provision of the TIA shall govern.
Section 15.8. Table Of Contents, Headings, Etc. The table of contents and the
titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.9. Execution In Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 15.10. Manner Of Mailing Notice To Noteholders. Any notice or demand
which by any provision of this Indenture is required or permitted to be given
or served by the Trustee or the Company to or on the Holders of Notes, as the
case may be, shall be given or served by first-class mail, postage prepaid,
addressed to the Holders of such Notes at their last addresses as the same
appear on the register for the Notes referred to in Section 2.6, and any such
notice shall be deemed to be given or served by being deposited in a post
office letter box in the form and manner provided in this Section 15.10. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice to any Holder by mail,
then such notification to such Holder as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 15.11. Approval By Trustee Of Expert Or Counsel. Wherever the Trustee
is required to approve an Expert or counsel who is to furnish evidence of
compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by
the Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
57
<PAGE>
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this
Indenture to be signed and acknowledged by one of its Vice Presidents, and
attested by its Secretary, and Norwest Bank Minnesota, National Association
has caused this Indenture to be signed and acknowledged by one of its Vice
Presidents, and attested by one of its Vice Presidents, as of the day and
year first written above.
NORTHERN STATES POWER COMPANY
By
---------------------------------
ATTEST: E.J. McIntyre, Vice President and
Chief Financial Officer
John P. Moore, Jr., Corporate Secretary
Norwest Bank Minnesota, National
Association, as Trustee
By___________________________________
ATTEST:
________________________
58
<PAGE>
EXHIBIT A
FORM OF GLOBAL NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITORY (REFERRED
TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE 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., 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
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of Minnesota (the
"Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
A-1
<PAGE>
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue
Date is applicable) set forth above or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semiannually in
arrears on the and in each year, commencing on the first
such Interest Payment Date succeeding the applicable Original Issue Date set
forth above, at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Global
Note is paid on the Maturity Date. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Note is registered
at the close of business on the Regular Record Date for such interest, which
shall be the or , as the case may be, next
preceding such Interest Payment Date; provided that the first Interest
Payment Date for any part of this Note, the Original Issue Date of which is
after a Regular Record Date but prior to the applicable Interest Payment
Date, shall be the Interest Payment Date following the next succeeding
Regular Record Date; and provided that interest payable on the Maturity Date
set forth above or, if applicable, upon redemption or acceleration, shall be
payable to the Person to whom principal shall be payable. Except as otherwise
provided in the Indenture (as defined below), any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and shall be paid to the Person in
whose name this Note is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Noteholders not more than fifteen
days or fewer than ten days prior to such Special Record Date. On or before
10:00 a.m., New York City time, or such other time as shall be agreed upon
between the Trustee and the Depository, of the day on which such payment of
interest is due on this Global Note (other than maturity), the Trustee shall
pay to the Depository such interest in same day funds. On or before 10:00
a.m., New York City time, or such other time as shall be agreed upon between
the Trustee and the Depository, of the day on which principal, interest
payable at maturity and premium, if any, is due on this Global Note, the
Trustee shall deposit with the Depository the amount equal to the principal,
interest payable at maturity and premium, if any, by wire transfer into the
account specified by the Depository. As a condition to the payment, on the
Maturity Date or upon redemption or acceleration, of any part of the
principal and applicable premium of this Global Note, the Depository shall
surrender, or cause to be surrendered, this Global Note to the Trustee,
whereupon a new Global Note shall be issued to the Depository.
This Global Note is a global security in respect of a duly
authorized issue of Senior Notes, Series ___(the "Notes of this Series",
which term includes any Global Notes representing such Notes) of the Company
issued and to be issued under an Indenture dated as of ______, 199_ between
the Company and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee", which term includes any successor Trustee under the Indenture) and
indentures supplemental thereto (collectively, the "Indenture"). Under the
Indenture, one or more series of notes may be issued and, as used herein, the
term "Notes" refers to the Notes of this Series and any other outstanding
series of Notes. Reference is hereby made for a more complete statement of
the respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the
A-2
<PAGE>
Trustee and the Noteholders and of the terms upon which the Notes are and are
to be authenticated and delivered. This Global Note has been issued in
respect of the series designated on the first page hereof, limited in
aggregate principal amount to $ .
Prior to the Release Date (as hereinafter defined), the Notes will be
secured by First Mortgage Bonds (the "Senior Note Mortgage Bonds") delivered by
the Company to the Trustee for the benefit of the Holders of the Notes, issued
under the Trust Indenture, dated as of February 1, 1937, from the Company to
Harris Trust and Savings Bank, as trustee (the "Mortgage Trustee"), as
supplemented and modified by supplemental indentures and a Restated Indenture
dated May 1, 1988 (collectively, the "Mortgage Indenture"). Reference is made to
the Mortgage Indenture and the Indenture for a description of the rights of the
Trustee as holder of the Senior Note Mortgage Bonds, the property mortgaged and
pledged, under the Mortgage Indenture and the rights of the Company and of the
Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage
Trustee and the terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional First Mortgage Bonds
may be issued.
From and after the release date referred to in the immediately
preceding paragraph, which is the date that the shareholders of the Company
approve the amendment of Article V, Section 6a(i) of the Articles of
Incorporation of the Company so that the approval of preferred stockholders of
the Company is no longer required to issue unsecured debt exceeding 20% of the
sum of the secured debt, capital stock and capital surplus of the Company (the
"Release Date"), the Senior Note Mortgage Bonds shall cease to secure the Notes
in any manner. In certain circumstances prior to the Release Date as provided in
the Indenture, the Company is permitted to reduce the aggregate principal amount
of a series of Senior Note Mortgage Bonds held by the Trustee, but in no event
prior to the Release Date to an amount less than the aggregate outstanding
principal amount of the series of Notes initially issued contemporaneously with
such Senior Note Mortgage Bonds.
Each Note of this Series shall be dated and issued as of the date of
its authentication by the Trustee and shall bear an Original Issue Date or
Dates. Each Note or Global Note issued upon transfer, exchange or substitution
of such Note or Global Note shall bear the Original Issue Date or Dates of such
transferred, exchanged or substituted Note or Global Note, as the case may be.
[As applicable, one of the following two sentences: This Global Note
may not be redeemed prior to , . This Global Note is not redeemable
prior to the Maturity Date set forth on the first page hereof.] [If applicable:
On or after , , this Global Note is redeemable in whole or
in part in increments of $1,000 (provided that any remaining principal
amount of this Global Note shall be at least $100,000) at the option of
the Company at the following redemption prices (expressed as a percentage
of the principal amount to be redeemed) plus accrued interest to the
redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
A-3
<PAGE>
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Global
Note in part only, a new Global Note or Notes of like tenor and series for
the unredeemed portion hereof will be issued in the name of the Noteholder
hereof upon the surrender hereof.]
Interest payments for this Global Note shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. If any Interest Payment
Date or date on which the principal of this Global Note is required to be paid
is not a Business Day, then payment of principal, premium or interest need not
be made on such date but may be made on the next succeeding Business Day with
the same force and effect as if made on such Interest Payment Date or date on
which the principal of this Global Note is required to be paid and, in the case
of timely payment thereof, no interest shall accrue for the period from and
after such Interest Payment Date or the date on which the principal of this
Global Note is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Notes (except for certain obligations including obligations to
register the transfer or exchange of Notes, replace stolen, lost or mutilated
Notes, maintain paying agencies and hold monies for payment in trust, all as set
forth in the Indenture) if the Company deposits with the Trustee money, U.S.
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an amount
sufficient, without reinvestment, to pay all the principal of and any premium
and interest on the Notes on the dates such payments are due in accordance with
the terms of the Notes.
If an Event of Default shall occur and be continuing, the principal of
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Noteholders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Notes. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in
lieu thereof whether or not notation of such consent or waiver is made upon the
Note.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder unless such Holder shall have
previously given to the Trustee written notice of a
A-4
<PAGE>
continuing Event of Default with respect to such Notes, the Holders of not
less than a majority in principal amount of the outstanding Notes affected by
such Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the
Trustee shall have failed to institute such proceeding within 60 days;
provided that such limitations do not apply to a suit instituted by the
Holder hereof for the enforcement of payment of the principal of and any
premium or interest on this Note on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Note may be transferred only as permitted by the legend
hereto.
If at any time the Depository for this Global Note notifies the Company
that it is unwilling or unable to continue as Depository for this Global Note or
if at any time the Depository for this Global Note shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
Depository with respect to this Global Note. If a successor Depository for this
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election to issue this Note in global form shall no longer be effective with
respect to this Global Note and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes of this Series in exchange for this Global Note, will authenticate and
deliver individual Notes of this Series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of this
Global Note.
The Company may at any time and in its sole discretion determine that
all Notes of this Series (but not less than all) issued or issuable in the form
of one or more Global Notes shall no longer be represented by such Global Note
or Notes. In such event, the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Notes of this Series in exchange for such Global Note, shall authenticate and
deliver, individual Notes of this Series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Note or Notes in exchange for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the Depository
may be required to surrender any two or more Global Notes which have identical
terms (but which may have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate and deliver to, or
at the direction of, the Depository a Global Note in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered thereto and that shall indicate all Original Issue Dates and
the principal amount applicable to each such Original Issue Date.
A-5
<PAGE>
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
Unless the certificate of authentication hereon has been executed by
the Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer, this Global Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture unless otherwise
indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
Dated:
By:______________________________________
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes
of the series herein
designated, described or
provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:_________________________________________________________
Authorized Officer
A-6
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian ___________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of _____________________________________
survivorship and not as tenants in common State
Additional abbreviations may also be
used though not in the above list.
___________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
________________________________
the within note and all
rights thereunder, hereby
irrevocably constituting and
appointing ____________
attorney to transfer said
note on the books of the
Company, with full power of
substitution in the premises.
Dated:_________________________
_______________________________________
NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatever.
A-7
<PAGE>
EXHIBIT B
FORM OF NOTE
PRIOR TO RELEASE DATE
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "Company"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon
from the Original Issue Date set forth above or from the most recent date to
which interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest Payment
Date succeeding the Original Issue Date set forth above, at the per annum
Interest Rate set forth above, until the principal hereof is paid or made
available for payment. No interest shall accrue on the Maturity Date, so long
as the principal amount of this Note is paid in full on the Maturity Date.
The interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture (as defined below),
be paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be the
or , as the case may be, next preceding such Interest
Payment Date; provided that the first Interest Payment Date for any Note of
this Series, the Original Issue Date of which is after a Regular Record Date
but prior to the applicable Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Regular Record Date; and provided,
further, that interest payable on the Maturity Date set forth above or, if
applicable, upon redemption or acceleration, shall be payable to the Person
to whom principal shall be payable. Except as otherwise provided in the
Indenture (referred to on the reverse hereof), any such interest not so
punctually paid or duly provided for
B-1
<PAGE>
will forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid to the Person in whose name this Note is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Noteholders not more than fifteen days nor fewer than ten days prior to such
Special Record Date. Principal, applicable premium and interest due at the
maturity of this Note shall be payable in immediately available funds when
due upon presentation and surrender of this Note at the corporate trust
office of the Trustee or at the authorized office of any paying agent in the
Borough of Manhattan, the City and State of New York. Interest on this Note
(other than interest payable at maturity) shall be paid by check in
clearinghouse funds to the Holder as its name appears on the register;
provided that if the Trustee receives a written request from any Holder of
Notes (as defined below), the aggregate principal amount of all of which
having the same Interest Payment Date as this Note equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest on
this Note shall be paid by wire transfer of immediately available funds to a
bank within the continental United States designated by such Holder in its
request or by direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
B-2
<PAGE>
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, directly or through
an Authenticating Agent by manual signature of an authorized officer, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
NORTHERN STATES POWER COMPANY
By:_____________________________________
Dated:
Title:____________________________________
Attest:___________________________________
Title:____________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes
of the series herein
designated, described or
provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
By:_________________________________________________________
Authorized Officer
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<PAGE>
[FORM OF REVERSE OF NOTE]
NORTHERN STATES POWER COMPANY
SENIOR NOTE, SERIES
This Note is one of a duly authorized issue of Senior Notes, Series
____ (the "Notes of this Series") of the Company issued and to be issued
under an Indenture dated as of _______ __, 199_ between the Company and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee",
which term includes any successor Trustee under the Indenture) and indentures
supplemental thereto (collectively, the "Indenture"). Under the Indenture,
one or more series of notes may be issued and, as used herein, the term
"Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made for a more complete statement of the
respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Noteholders and of the terms
upon which the Notes are and are to be authenticated and delivered. This Note
is one of the series designated on the face hereof, limited in aggregate
principal amount to $ .
Prior to the Release Date (as hereinafter defined), the Notes
will be secured by First Mortgage Bonds (the "Senior First Mortgage Bonds")
delivered by the Company to the Trustee for the benefit of the Holders of the
Notes, issued under the Trust Indenture, dated as of February 1, 1937, from the
Company to Harris Trust and Savings Bank, as trustee (the "Mortgage Trustee"),
as supplemented and modified by supplemental indentures and a Restated Indenture
dated May 1, 1988 (collectively, the "Mortgage Indenture"). Reference is made to
the Mortgage Indenture and the Indenture for a description of the rights of the
Trustee as holder of the Senior Note Mortgage Bonds, the property mortgaged and
pledged under the Mortgage Indenture and the rights of the Company and of the
Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage
Trustee and the terms and conditions upon which the Senior Note Mortgage Bonds
are secured and the circumstances under which additional First Mortgage Bonds
may be issued.
From and after the release date referred to in the immediately
preceding paragraph, which is the date that the shareholders of the Company
approve the amendment of Article V, Section 6a(i) of the Articles of
Incorporation of the Company so that the approval of preferred stockholders
of the Company is no longer required to issue unsecured debt exceeding 20% of
the sum of the secured debt, capital stock and capital surplus of the Company
(the "Release Date"), the Senior Note Mortgage Bonds shall cease to secure
the Notes in any manner. In certain circumstances prior to the Release Date
as provided in the Indenture, the Company is permitted to reduce the
aggregate principal amount of a series of Senior Note Mortgage Bonds held by
the Trustee, but in no event prior to the Release Date to an amount less than
the aggregate outstanding principal amount of the series of Notes initially
issued contemporaneously with such Senior Note Mortgage Bonds.
[As applicable, one of the following two sentences: This Note may not be
redeemed prior to , . This Note is not redeemable prior to the
Maturity Date set forth on the face hereof.] [If applicable: On or after ,
,this Note is redeemable in
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<PAGE>
whole or in part in increments of $1,000 (provided that any remaining
principal amount of this Note shall be at least $1,000) at the option of the
Company at the following redemption prices (expressed as a percentage of the
principal amount to be redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ ------------------
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Note in
part only, a new Note or Notes of this Series of like tenor for the
unredeemed portion hereof will be issued in the name of the Noteholder hereof
upon the surrender hereof.]
Interest payments for this Note shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. If any Interest Payment
Date or the date on which the principal of this Note is required to be paid is
not a Business Day, then payment of principal, premium or interest need not be
made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date or the date on
which the principal of this Note is required to be paid, and, in the case of
timely payment thereof, no interest shall accrue for the period from and after
such Interest Payment Date or the date on which the principal of this Note is
required to be paid.
The Company, at its option, and subject to the terms and
conditions provided in the Indenture, will be discharged from any and all
obligations in respect of the Notes (except for certain obligations including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S. Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
or a combination of money and U.S. Government Obligations, in any event in an
amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the
principal of the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture and, upon such declaration, the Trustee can
demand the redemption of the Senior Note Mortgage Bonds as provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modifications of the rights and
obligations of the Company and the rights of the Noteholders under the
Indenture at any time by the Company and the Trustee with the consent of
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<PAGE>
the Holders of not less than a majority in principal amount of the
outstanding Notes. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders
of this Note and of any Note issued upon the registration of transfer hereof
or in exchange therefor in lieu thereof whether or not notation of such
consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to such Notes, the Holders of not less
than a majority in principal amount of the outstanding Notes affected by such
Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the Trustee
shall have failed to institute such proceeding within 60 days; provided that
such limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the times, places and rates and the coin or currency
prescribed in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note register. Upon surrender of this Note for registration or transfer at the
corporate trust office of the Trustee or such other office or agency as may be
designated by the Company in the Borough of Manhattan, the City and State of New
York, endorsed by or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note registrar, duly executed by the Holder
hereof or the attorney in fact of such Holder duly authorized in writing, one or
more new Notes of this Series of like tenor and of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees.
The Notes of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this Series are exchangeable for a like aggregate principal
amount of Notes of this Series of like tenor and of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this
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<PAGE>
Note is registered as the owner thereof for all purposes, whether or not this
Note is overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common UNIF GIFT
MIN ACT-- _____ Custodian ____________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of ____________________________________
survivorship and not as tenants in common State
Additional abbreviations may also be used
though not in the above list.
___________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________
the within note and all
rights thereunder, hereby
irrevocably constituting and
appointing __________________
attorney to transfer said
note on the books of the
Company, with full power of
substitution in the premises.
Dated:_________________________
________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
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<PAGE>
EXHIBIT C
FORM OF GLOBAL NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE
DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE 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., 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
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "Company"), for value received hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
the Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which
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<PAGE>
interest has been paid or duly provided for, semiannually in arrears on the
___ and ___ in each year, commencing on the first such Interest Payment Date
succeeding the applicable Original Issue Date set forth above, at the per
annum Interest Rate set forth above, until the principal hereof is paid or
made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount of this Global Note is paid on the Maturity
Date. The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the or , as the case
may be, next preceding such Interest Payment Date; provided, that the first
Interest Payment Date for any part of this Note, the Original Issue Date of
which is after a Regular Record Date but prior to the applicable Interest
Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture (as defined below),
any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be
paid to the Person in whose name this Note is registered at the close of
business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Noteholders not
more than fifteen days or fewer than ten days prior to such Special Record
Date. On or before 10:00 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, of the day on
which such payment of interest is due on this Global Note (other than
maturity), the Trustee shall pay to the Depository such interest in same day
funds. On or before 10:00 a.m., New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, of the day on
which principal, interest payable at maturity and premium, if any, is due on
this Global Note, the Trustee shall deposit with the Depository the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depository. As a condition to
the payment, on the Maturity Date or upon redemption or acceleration, of any
part of the principal and applicable premium of this Global Note, the
Depository shall surrender, or cause to be surrendered, this Global Note to
the Trustee, whereupon a new Global Note shall be issued to the Depository.
This Global Note is a global security in respect of a duly
authorized issue of Senior Notes, Series (the "Notes of this Series", which
term includes any Global Notes representing such Notes) of the Company issued
and to be issued under an Indenture dated as of ________ __, 199_ between the
Company and Norwest Bank Minnesota, National Association, as trustee (herein
called the "Trustee", which term includes any successor Trustee under the
Indenture) and indentures supplemental thereto (collectively, the
"Indenture"). Under the Indenture, one or more series of notes may be issued
and, as used herein, the term "Notes" refers to the Notes of this Series and
any other outstanding series of Notes. Reference is hereby made for a more
complete statement of the respective rights, limitations of rights, duties
and immunities under the Indenture of the Company, the Trustee and the
Noteholders and of the terms upon which the Notes are and are to be
authenticated and delivered. This Global Note has been issued in respect of
the series designated on the first page hereof, limited in aggregate
principal amount to $ .
Each Note of this Series shall be dated and issued as of the
date of its authentication by the Trustee and shall bear an Original Issue Date
or Dates. Each Note or Global Note issued upon
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<PAGE>
transfer, exchange or substitution of such Note or Global Note shall bear the
Original Issue Date or Dates of such transferred, exchanged or substituted
Note or Global Note, as the case may be.
[As applicable, one of the following two sentences: This
Global Note may not be redeemed prior to , . This Global Note is
not redeemable prior to the Maturity Date set forth on the first page hereof.]
[If applicable: On or after , , this Global Note is redeemable in
whole or in part in increments of $1,000 (provided that any remaining
principal amount of this Global Note shall be at least $100,000) at the
option of the Company at the following redemption prices (expressed as a
percentage of the principal amount to be redeemed) plus accrued interest to
the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Notes of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Global Note in part only, a new Global Note or Notes of like tenor and series
for the unredeemed portion hereof will be issued in the name of the Noteholder
hereof upon the surrender hereof.]
Interest payments for this Global Note shall be computed and
paid on the basis of a 360-day year of twelve 30-day months. In any case where
any Interest Payment Date or date on which the principal of this Global Note is
required to be paid is not a Business Day, then payment of principal, premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment
Date or date on which the principal of this Global Note is required to be paid
and, in the case of timely payment thereof, no interest shall accrue for the
period from and after such Interest Payment Date or the date on which the
principal of this Global Note is required to be paid.
The Company, at its option, and subject to the terms and
conditions provided in the Indenture, will be discharged from any and all
obligations in respect of the Notes (except for certain obligations including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S. Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
or a combination of money and U.S. Government Obligations, in any event in an
amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the
principal of the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture.
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<PAGE>
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modifications of the rights and
obligations of the Company and the rights of the Noteholders under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of
not less than a majority in principal amount of the outstanding Notes. Any such
consent or waiver by the Holder of this Global Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Global Note and of
any Note issued upon the registration of transfer hereof or in exchange therefor
or in lieu thereof whether or not notation of such consent or waiver is made
upon the Note.
As set forth in and subject to the provisions of the
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to such Notes, the Holders of not less
than a majority in principal amount of the outstanding Notes affected by such
Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the Trustee
shall have failed to institute such proceeding within 60 days; provided,
however, that such limitations do not apply to a suit instituted by the Holder
hereof for the enforcement of payment of the principal of and any premium or
interest on this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this
Global Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Global Note at the times, places and rates and the
coin or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, this Global Note may be transferred only as
permitted by the legend hereto.
If at any time the Depository for this Global Note notifies
the Company that it is unwilling or unable to continue as Depository for this
Global Note or if at any time the Depository for this Global Note shall no
longer be eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to this Global Note. If a successor
Depository for this Global Note is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election to issue this Note in global form shall no longer be
effective with respect to this Global Note and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes of this Series in exchange for this Global Note, will
authenticate and deliver individual Notes of this Series of like tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of this Global Note.
The Company may at any time and in its sole discretion
determine that all Notes of this Series (but not less than all) issued or
issuable in the form of one or more Global Notes shall no longer be represented
by such Global Note or Notes. In such event, the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes of this Series in exchange for such Global Note, shall
authenticate and deliver, individual Notes of this Series of like tenor and
terms in definitive form in an aggregate principal
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<PAGE>
amount equal to the principal amount of such Global Note or Notes in exchange
for such Global Note or Notes.
Under certain circumstances specified in the Indenture, the
Depository may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate all Original
Issue Dates and the principal amount applicable to each such Original Issue
Date.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
Unless the certificate of authentication hereon has been
executed by the Trustee, directly or through an Authenticating Agent by manual
signature of an authorized officer, this Global Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
NORTHERN STATES POWER COMPANY
By:______________________________________
Dated:
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes
of the series herein
designated, described or
provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:___________________________
Authorized Officer
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT-- _____ Custodian ____________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of ______________________________________
survivorship and not as tenants in common State
Additional abbreviations may also be
used though not in the above list.
_____________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________
the within note and all rights
thereunder, hereby irrevocably
constituting and appointing
____________ attorney to
transfer said note on the
books of the Company, with full
power of substitution in the
premises.
Dated:_________________________
________________________________
NOTICE: The signature to this
assignment must correspond
with the name as written
upon the face of the within
instrument in every
particular, without
alteration or enlargement
or any change whatever.
C-6
<PAGE>
EXHIBIT D
FORM OF NOTE FOLLOWING RELEASE DATE
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
SENIOR NOTE, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "Company"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from
the Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such
Interest Payment Date succeeding the Original Issue Date set forth above, at
the per annum Interest Rate set forth above, until the principal hereof is
paid or made available for payment. No interest shall accrue on the Maturity
Date, so long as the principal amount of this Note is paid in full on the
Maturity Date. The interest so payable and punctually paid or duly provided
for on any such Interest Payment Date will, as provided in the Indenture (as
defined below), be paid to the Person in whose name this Note is registered
at the close of business on the Regular Record Date for such interest, which
shall be the or , as the case may be, next preceding
such Interest Payment Date; provided that the first Interest Payment Date for
any Note, the Original Issue Date of which is after a Regular Record Date but
prior to the applicable Interest Payment Date, shall be the Interest Payment
Date following the next succeeding Regular Record Date; and provided, that
interest payable on the Maturity Date set forth above or, if applicable, upon
redemption or acceleration, shall be payable to the Person to whom principal
shall be payable. Except as otherwise provided in the Indenture (referred to
on the reverse hereof), any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and shall be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall
be
<PAGE>
given to Noteholders not more than fifteen days nor fewer than ten days
prior to such Special Record Date. Principal, applicable premium and interest
due at the maturity of this Note shall be payable in immediately available
funds when due upon presentation and surrender of this Note at the corporate
trust office of the Trustee or at the authorized office of any paying agent
in the Borough of Manhattan, the City and State of New York. Interest on this
Note (other than interest payable at maturity) shall be paid by check in
clearinghouse funds to the Holder as its name appears on the register;
provided, that if the Trustee receives a written request from any Holder of
Notes (as defined below), the aggregate principal amount of all of which
having the same Interest Payment Date as this Note equals or exceeds
$10,000,000, on or prior to the applicable Regular Record Date, interest on
the Note shall be paid by wire transfer of immediately available funds to a
bank within the continental United States designated by such Holder in its
request or by direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with the Trustee or
any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, directly or through
an Authenticating Agent by manual signature of an authorized officer, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
NORTHERN STATES POWER COMPANY
By:______________________________________
Dated:
Title:___________________________________
Attest:__________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Notes
of the series herein
designated, described or
provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Authorized Officer
D-2
<PAGE>
[FORM OF REVERSE OF NOTE]
NORTHERN STATES POWER COMPANY
SENIOR NOTE, SERIES
This Note is one of a duly authorized issue of Senior Notes,
Series (the "Notes of this Series") of the Company issued and to be issued under
an Indenture dated as of ________ __, 199_, between the Company and
Norwest Bank Minnesota, National Association, as trustee (herein called the
"Trustee", which term includes any successor Trustee under the Indenture) and
indentures supplemental thereto (collectively, the "Indenture"). Under the
Indenture, one or more series of notes may be issued and, as used herein, the
term "Notes" refers to the Notes of this Series and any other outstanding series
of Notes. Reference is hereby made for a more complete statement of the
respective rights, limitations of rights, duties and immunities under the
Indenture of the Company, the Trustee and the Noteholders and of the terms upon
which the Notes are and are to be authenticated and delivered. This Note is one
of the series designated on the face hereof, limited in aggregate principal
amount to $ .
[As applicable, one of the following two sentences: This Note
may not be redeemed prior to , . This Note is not redeemable
prior to the Maturity Date set forth on the face hereof.] [If applicable: On or
after , , this Note is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this
Note shall be at least $1,000) at the option of the Company at the following
redemption prices (expressed as a percentage of the principal amount to be
redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Note in
part only, a new Note or Notes of this Series of like tenor for the
unredeemed portion hereof will be issued in the name of the Noteholder hereof
upon the surrender hereof.
Interest payments for this Note shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or the date on which the principal of this Note is
required to be paid is not a Business Day, then payment of principal, premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment
Date or the date on which the principal of this Note is required to be paid,
and, in the case of timely payment thereof, no interest shall accrue for the
period from and after such Interest Payment Date or the date on which the
principal of this Note is required to be paid.
The Company, at its option, and subject to the terms and
conditions provided in the Indenture, will be discharged from any and all
obligations in respect of the Notes (except for certain obligations including
obligations to register the transfer or exchange of Notes, replace stolen, lost
or mutilated Notes, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S.
D-3
<PAGE>
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, or a
combination of money and U.S. Government Obligations, in any event in an
amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Notes on the dates such payments are due in
accordance with the terms of the Notes.
If an Event of Default shall occur and be continuing, the
principal of the Notes may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modifications of the rights and
obligations of the Company and the rights of the Noteholders under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of
not less than a majority in principal amount of the outstanding Notes. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor in lieu thereof
whether or not notation of such consent or waiver is made upon the Note.
As set forth in and subject to the provisions of the
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to such Notes, the Holders of not less
than a majority in principal amount of the outstanding Notes affected by such
Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the Trustee
shall have failed to institute such proceeding within 60 days; provided,
however, that such limitations do not apply to a suit instituted by the Holder
hereof for the enforcement of payment of the principal of and any premium or
interest on this Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the times, places and rates and the coin or currency
prescribed in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note register. Upon surrender of this Note for registration or transfer at the
corporate trust office of the Trustee or such other office or agency as may be
designated by the Company in the Borough of Manhattan, the City and State of New
York, endorsed by or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note registrar, duly executed by the Holder
hereof or the attorney in fact of such Holder duly authorized in writing, one or
more new Notes of this Series of like tenor and of authorized denominations and
for the same aggregate principal amount will be issued to the designated
transferee or transferees.
The Notes of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes of this Series are exchangeable for a like
D-4
<PAGE>
aggregate principal amount of Notes of this Series of like tenor and of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner thereof
for all purposes, whether or not this Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
D-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT-- _____ Custodian ____________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants _____________________________________
in common State
Additional abbreviations may also
be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________
the within note and all
rights thereunder, hereby
irrevocably constituting and
appointing _______________
attorney to transfer said
note on the books of the
Company, with full power of
substitution in the premises.
Dated:________________________
____________________________________
NOTICE: The signature to this
assignment must correspond
with the name as written
upon the face of the within
instrument in every particular,
without alteration or enlargement
or any change whatever.
D-6
<PAGE>
Exhibit 4.01YY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
--------------------------------------------
TRUSTEE
INDENTURE
DATED AS OF _________ __, 199_
_______________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Providing for issuance of Debt Securities
<PAGE>
CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(a) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ----------------- -------------------------------------------------------- ----
<S> <C> <C>
310(a)(1) 8.9 43
310(a)(2) 8.9 43
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 8.9 43
310(b) 8.8 43
310(c) NOT APPLICABLE --
311(a) 8.14 46
311(b) 8.14 46
311(c) NOT APPLICABLE --
312(a) 6.1(a) 31
312(b) 6.1(b) 31
312(c) 6.1(c) 32
313(a) 6.3(a) 33
313(b) 6.3(b) 33
313(c) 6.3(d) 33
313(d) 6.3(c) and 6.3(d) 33
314(a) 6.2(a), 6.2(b) and 6.2(c) 30-32
314(b) NOT APPLICABLE 30
314(c)(1) Definition of Officers' Certificate, 6.5 and 14.5(a) 5;30;56
314(c)(2) Definition of Opinion of Counsel and 14.5 5;56
314(c)(3) NOT APPLICABLE --
314(d)(1) NOT APPLICABLE 4;23
314(d)(2) NOT APPLICABLE 4;23
314(d)(3) NOT APPLICABLE 23
314(e) 14.5(b) 56
314(f) NOT APPLICABLE --
315(a) 8.1 and 8.2 40-42
315(b) 7.8 39
315(c) 8.1(a) 40
315(d) 8.1(b) 40
315(e) 7.9 39
316(a) 7.7 39
9.4 47
12.2 53
316(b) 7.4 38
12.2 53
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
- ---------------- -------------------------------------------------------- -----
<S> <C> <C>
316(c) 9.6 48
317(a)(1) 7.2(b) 36
317(a)(2) 7.2(c) 36
317(b) 4.2 27
5.4 29
318(a) 14.7 57
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties......................................................................1
Recitals.....................................................................1
ARTICLE I. DEFINITIONS.......................................................1
Section 1.1. General..........................................1
Section 1.2. Trust Indenture Act..............................1
Section 1.3. Definitions......................................2
ARTICLE II. FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES........................................7
Section 2.1. Form Generally...................................7
Section 2.2. Form Of Trustee's Certificate Of
Authentication.................................7
Section 2.3. Amount Unlimited.................................7
Section 2.4. Denominations, Dates, Interest Payment And
Record Dates...................................7
Section 2.5. Execution, Authentication, Delivery
And Dating.....................................9
Section 2.6. Exchange And Registration Of Transfer Of
Securities....................................11
Section 2.7. Mutilated, Destroyed, Lost Or Stolen
Securities....................................12
Section 2.8. Temporary Securities............................13
Section 2.9. Cancellation Of Securities Paid, Etc............14
Section 2.10. Interest Rights Preserved.......................14
Section 2.11. Special Record Date.............................14
Section 2.12. Payment Of Securities...........................14
Section 2.13. Securities Issuable In The Form Of A Global
Security.....................................15
ARTICLE III. REDEMPTION OF SECURITIES.......................................17
Section 3.1. Applicability Of Article........................17
Section 3.2. Notice Of Redemption; Selection Of
Securities....................................17
Section 3.3. Payment Of Securities On Redemption;
Deposit Of Redemption Price...................18
ARTICLE IV. SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS....................19
Section 4.1. Satisfaction And Discharge......................19
Section 4.2. Deposited Moneys To Be Held In Trust By
Trustee.......................................21
Section 4.3. Paying Agent To Repay Moneys Held ..............21
Section 4.4. Return Of Unclaimed Moneys......................21
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY.............................21
Section 5.1. Payment Of Principal, Premium And Interest.....21
Section 5.2. Office For Notices And Payments, Etc...........22
Section 5.3. Appointments To Fill Vacancies In
Trustee's Office.............................22
Section 5.4. Provision As To Paying Agent...................22
Section 5.5. Certificates And Notice To Trustee.............23
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VI. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE..................................................23
Section 6.1. Securityholder Lists...........................23
Section 6.2. Securities And Exchange Commission Reports.....25
Section 6.3. Reports By The Trustee.........................25
ARTICLE VII. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS
OF DEFAULT..................................................26
Section 7.1. Events Of Default..............................26
Section 7.2. Payment Of Securities On Default; Suit
Therefor.....................................28
Section 7.3. Application Of Moneys Collected By Trustee.....29
Section 7.4. Proceedings By Securityholders.................30
Section 7.5. Proceedings By Trustee.........................30
Section 7.6. Remedies Cumulative And Continuing.............31
Section 7.7. Direction Of Proceedings And Waiver Of
Defaults By Majority Of Securityholders......31
Section 7.8. Notice Of Default..............................31
Section 7.9. Undertaking To Pay Costs.......................32
ARTICLE VIII. CONCERNING THE TRUSTEE.......................................32
Section 8.1. Duties And Responsibilities Of Trustee.........32
Section 8.2. Reliance On Documents, Opinions, Etc...........33
Section 8.3. No Responsibility For Recitals, Etc............34
Section 8.4. Trustee, Authenticating Agent, Paying
Agent Or Registrar May Own Securities........34
Section 8.5. Moneys To Be Held In Trust.....................34
Section 8.6. Compensation And Expenses Of Trustee...........35
Section 8.7. Officers' Certificate As Evidence..............35
Section 8.8. Conflicting Interest Of Trustee................35
Section 8.9. Existence And Eligibility Of Trustee...........35
Section 8.10. Resignation Or Removal Of Trustee..............36
Section 8.11. Appointment Of Successor Trustee...............37
Section 8.12. Acceptance By Successor Trustee................37
Section 8.13. Succession By Merger, Etc......................38
Section 8.14. Limitations On Rights Of Trustee As
A Creditor...................................38
Section 8.15. Authenticating Agent...........................38
ARTICLE IX. CONCERNING THE SECURITYHOLDERS.................................39
Section 9.1. Action By Securityholders......................39
Section 9.2. Proof Of Execution By Securityholders..........39
Section 9.3. Who Deemed Absolute Owners.....................40
Section 9.4. Company-Owned Securities Disregarded...........40
Section 9.5. Revocation Of Consents; Future Holders Bound...40
Section 9.6. Record Date For Securityholder Acts............40
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE X. SECURITYHOLDERS' MEETING........................................41
Section 10.1. Purposes Of Meetings...........................41
Section 10.2. Call Of Meetings By Trustee....................41
Section 10.3. Call Of Meetings By Company Or
Securityholders..............................41
Section 10.4. Qualifications For Voting......................42
Section 10.5. Regulations....................................42
Section 10.6. Voting.........................................43
Section 10.7. Rights Of Trustee Or Securityholders
Not Delayed..................................43
ARTICLE XI. CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION.....43
Section 11.1. Company May Consolidate, Etc. Only
On Certain Terms.............................43
Section 11.2. Successor Corporation Substituted..............44
ARTICLE XII. SUPPLEMENTAL INDENTURES.......................................44
Section 12.1. Supplemental Indentures Without Consent
Of Securityholders...........................44
Section 12.2. Supplemental Indentures With Consent
Of Securityholders...........................45
Section 12.3. Compliance With Trust Indenture Act; Effect
Of Supplemental Indentures...................46
Section 12.4. Notation On Securities.........................46
Section 12.5. Evidence Of Compliance Of Supplemental
Indenture To Be Furnished Trustee............46
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS................................................47
Section 13.1. Indenture And Securities Solely Corporate
Obligations..................................47
ARTICLE XIV. MISCELLANEOUS PROVISIONS......................................47
Section 14.1. Provisions Binding On Company's Successors.....47
Section 14.2. Official Acts By Successor Corporation.........47
Section 14.3. Notices........................................47
Section 14.4. Governing Law..................................48
Section 14.5. Evidence Of Compliance With Conditions
Precedent....................................48
Section 14.6. Business Days..................................49
Section 14.7. Trust Indenture Act To Control.................49
Section 14.8. Table Of Contents, Headings, Etc...............49
Section 14.9. Execution In Counterparts......................49
Section 14.10. Manner Of Mailing Notice To Securityholders....49
Section 14.11. Approval By Trustee Of Expert Or Counsel.......50
EXHIBIT A -- Form of Global Security.......................A-1
EXHIBIT B -- Form of Security .............................B-1
</TABLE>
v
<PAGE>
THIS INDENTURE, dated as of ________ __, _____, between NORTHERN
STATES POWER COMPANY, a corporation duly organized and existing under the
laws of the State of Minnesota (the "Company"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, as trustee (the "Trustee").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes or other evidences
of indebtedness (the "Securities"), to be issued as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are, and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the Holders thereof and of the sum of one dollar duly paid to it by the
Trustee at the execution of this Indenture, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities, as follows:
ARTICLE XIX.
DEFINITIONS
Section 1.1. General. The terms defined in this Article I (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Article I.
Section 1.2. Trust Indenture Act. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this Indenture that
are defined by the TIA, defined by the TIA by reference to another statute or
defined by a rule of the Commission under the TIA shall have the meanings
assigned to them in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
1
<PAGE>
Section 1.3. Definitions. For purposes of this Indenture, the following terms
shall have the following meanings.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean any agent of the Trustee
which shall be appointed and acting pursuant to Section 8.15 hereof.
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the Company
or the Financing Committee of such Board or any other duly authorized committee
of such Board.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions or trust companies in the
Borough of Manhattan, the City and State of New York, or in the city where the
corporate trust office of the Trustee is located, are obligated or authorized by
law or executive order to close.
COMMISSION:
The term "Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
COMPANY:
The term "Company" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
2
<PAGE>
COMPANY ORDER:
The term "Company Order" shall mean a written order signed in the name
of the Company by one of the Chairman, the President, any Vice President, the
Treasurer or an Assistant Treasurer, and the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "corporate trust office of the Trustee", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any
particular time its corporate trust business shall be principally
administered, which office is at the date of the execution of this Indenture
located at Corporate Trust Services, Sixth & Marquette Avenue, Minneapolis,
Minnesota 55479-0069.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise specified in a Company Order
pursuant to Section 2.5 hereof, The Depository Trust Company, New York, New
York, or any successor thereto registered and qualified under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section 7.1
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
GLOBAL SECURITY:
The term "Global Security" shall mean a Security that pursuant to Section 2.5
hereof is issued to evidence Securities, that is delivered to the Depository or
pursuant to the instructions of the Depository and that shall be registered in
the name of the Depository or its nominee.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5 hereof, (a) each [_______ and _______]
during the period any Security is outstanding (provided that the first Interest
Payment Date for any Security, the Original Issue Date of which is after a
Regular Record Date but prior to the respective Interest Payment Date, shall be
the Interest Payment Date following the next succeeding Regular Record Date),
(b) a date of maturity of such Security and (c) only with respect to defaulted
interest on such Security,
3
<PAGE>
the date established by the Trustee for the payment of such defaulted interest
pursuant to Section 2.11 hereof.
MATURITY:
The term "maturity," when used with respect to any Security, shall mean the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the stated maturity thereof or by declaration of
acceleration, redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or an
Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 14.5 hereof. If the Indenture requires the delivery of
an Opinion of Counsel to the Trustee, the text and substance of which has been
previously delivered to the Trustee, the Company may satisfy such requirement by
the delivery by the legal counsel that delivered such previous Opinion of
Counsel of a letter to the Trustee to the effect that the Trustee may rely on
such previous Opinion of Counsel as if such Opinion of Counsel was dated and
delivered the date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain conditions and qualifications satisfactory to the
Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "Opinion of Independent Counsel" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 14.5. Any Opinion of Independent Counsel
may contain conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a Security, or portions thereof,
the date upon which it, or such portion, was issued by the Company pursuant to
this Indenture and authenticated by the Trustee (other than in connection with a
transfer, exchange or substitution).
OUTSTANDING:
The term "outstanding", when used with reference to Securities, shall, subject
to Section 9.4 hereof, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
4
<PAGE>
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company), provided that if such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article III, or provisions
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities, or portions thereof, that have been paid and discharged
or are deemed to have been paid and discharged pursuant to the provisions of
this Indenture; and
(d) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered, or which have been paid, pursuant
to Section 2.7 hereof.
PERSON:
The term "Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political subdivision
thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "principal executive offices of the Company" shall mean 414 Nicollet
Mall, Minneapolis, Minnesota 55401, or such other place where the main corporate
offices of the Company are located as designated in writing to the Trustee by an
Authorized Agent.
REGULAR RECORD DATE:
The term "Regular Record Date" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5, for an Interest Payment Date for a
particular Security (a) the fifteenth day of the calendar month next preceding
each Interest Payment Date (unless the Interest Payment Date is the date of
maturity of such Security, in which event, the Regular Record Date shall be as
described in clause (b) hereof) and (b) the date of maturity of such Security.
RESPONSIBLE OFFICER:
The term "responsible officer" or "responsible officers" when used with respect
to the Trustee shall mean one or more of the following: the chairman of the
board of directors, the vice chairman of the board of directors, the chairman of
the executive committee, the president, any vice president, the secretary, the
treasurer, any trust officer, any assistant trust officer, any second or
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by
5
<PAGE>
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
SECURITY OR SECURITIES:
The terms "Security" or "Securities" shall mean any debt security or debt
securities, as the case may be, authenticated and delivered under this
Indenture, including any Global Security.
SECURITYHOLDER:
The terms "Securityholder", "Holder of Securities" or "Holder" shall mean any
Person in whose name at the time a particular Security is registered on the
books of the Trustee kept for that purpose in accordance with the terms hereof.
SPECIAL RECORD DATE:
The term "Special Record Date" shall mean, with respect to any Security, the
date established by the Trustee in connection with the payment of defaulted
interest on such Security pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "stated maturity" shall mean with respect to any Security, the last
date on which principal on such Security becomes due and payable as therein or
herein provided, other than by declaration of acceleration or by redemption.
TRUSTEE:
The term "Trustee" shall mean Norwest Bank Minnesota, National Association
and, subject to Article VIII, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment of
principal and interest by, the United States of America or an agency thereof for
the payment of which obligations or guarantee the full faith and credit of the
United States is pledged or (ii) certificates or receipts representing direct
ownership interests in obligations or specified portions (such as principal or
interest) of obligations described in clause (i) above, which obligations are
held by a custodian in safekeeping in a manner satisfactory to the Trustee.
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ARTICLE II.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.1. Form Generally.
(a) If the Securities are in the form of a Global Security they shall
be in substantially the form set forth in Exhibit A to this Indenture, and, if
the Securities are not in the form of a Global Security, they shall be in
substantially the form set forth in Exhibit B to this Indenture, or, in any
case, in such other form as shall be established by a Board Resolution, or a
Company Order pursuant to a Board Resolution, or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable rules of any securities exchange or of the Depository or with
applicable law or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
(b) The definitive Securities shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2. Form Of Trustee's Certificate Of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
Trustee's Certificate of Authentication
This Security is one of the Securities of the series herein designated,
described or provided for in the within-mentioned Indenture.
Norwest Bank Minnesota, National Association,
as Trustee
By:______________________________
Authorized Officer
Section 2.3. Amount Unlimited. The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is unlimited, subject to
compliance with the provisions of this Indenture.
Section 2.4. Denominations, Dates, Interest Payment And Record Dates.
(a) The Securities shall be issuable in registered form without coupons
in denominations of $1,000 and integral multiples thereof or such other amount
or amounts as may be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or
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in one or more indenture supplemental hereto; provided that the principal amount
of a Global Security shall not exceed $200,000,000 unless otherwise permitted by
the Depository.
(b) Each Security shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.13(e) hereof, two or more Original Issue Dates; each
Security issued upon transfer, exchange or substitution of a Security shall bear
the Original Issue Date or Dates of such transferred, exchanged or substituted
Security, subject to the provisions of Section 2.13(e) hereof.
(c) Each Security shall bear interest from the later of (1) its
Original Issue Date (or, if pursuant to Section 2.13 hereof, a Global Security
has two or more Original Issue Dates, interest shall, beginning on each such
Original Issue Date, begin to accrue for that part of the principal amount of
such Global Security to which that Original Issue Date is applicable), or (2)
the most recent date to which interest has been paid or duly provided for with
respect to such Security until the principal of such Security is paid or made
available for payment, and interest on each Security shall be payable on each
Interest Payment Date after the Original Issue Date.
(d) Each Security shall mature on a stated maturity specified in the
Security. The principal amount of each outstanding Security shall be payable on
the maturity date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to Section
2.5 hereof, interest on each of the Securities shall be calculated on the basis
of a 360-day year of twelve 30-day months and shall be computed at a fixed rate
until the maturity of such Securities. The method of computing interest on any
Securities not bearing a fixed rate of interest shall be set forth in a Company
Order pursuant to Section 2.5 hereof. Unless otherwise specified in a Company
Order pursuant to Section 2.5 hereof, principal, interest and premium on the
Securities shall be payable in the currency of the United States.
(f) Except as provided in the following sentence, the Person in whose
name any Security is registered at the close of business on any Regular Record
Date or Special Record Date with respect to an Interest Payment Date for such
Security shall be entitled to receive the interest payable on such Interest
Payment Date notwithstanding the cancellation of such Security upon any
registration of transfer, exchange or substitution of such Security subsequent
to such Regular Record Date or Special Record Date and prior to such Interest
Payment Date. Any interest payable at maturity shall be paid to the Person to
whom the principal of such Security is payable.
(g) Promptly after each Regular Record Date that is not a date of
maturity, the Trustee shall furnish to the Company a notice setting forth the
total amount of the interest payments to be made on the applicable Interest
Payment Date, and to the Depository a notice setting forth the total amount of
interest payments to be made on Global Securities on such Interest Payment Date.
The Trustee (or any duly selected paying agent) shall provide to the Company
during each month that precedes an Interest Payment Date a list of the
principal, interest and premium to be paid on Securities on such Interest
Payment Date and to the
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Depository a list of the principal, interest and premium to be paid on Global
Securities on such Interest Payment Date. Promptly after the first Business Day
of each month, the Trustee shall furnish to the Company a written notice setting
forth the aggregate principal amount of the Global Securities. The Trustee shall
assume responsibility for withholding taxes on interest paid as required by law
except with respect to any Global Security.
Section 2.5. Execution, Authentication, Delivery And Dating.
(a) The Securities shall be executed on behalf of the Company by one of
its Chairman, President, any Vice President, its Treasurer or an Assistant
Treasurer of the Company and attested by the Secretary or an Assistant Secretary
of the Company. The signature of any of these officers on the Securities may be
manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Securities, and the Trustee
in accordance with any such Company Order shall authenticate and deliver such
Securities. The Securities shall be issued in series. Such Company Order shall
specify the following with respect to each series of Securities: (i) any
limitations on the aggregate principal amount of the Securities to be issued as
part of such series, (ii) the Original Issue Date or Dates for such series,
(iii) the stated maturity of such series, (iv) the interest rate or rates, or
method of calculation of such rate or rates, for such series, (v) the terms, if
any, regarding the optional or mandatory redemption of such series, including
redemption date or dates of such series, if any, and the price or prices
applicable to such redemption (including any premium), (vi) whether or not the
Securities of such series shall be issued in whole or in part in the form of a
Global Security and, if so, the Depository for such Global Security, (vii) the
designation of such series, (viii) if the form of the Securities of such series
is not as described in Exhibit A or Exhibit B hereto, the form of the Securities
of such series, (ix) the maximum annual interest rate, if any, of the Securities
permitted for such series, (x) any other information necessary to complete the
Securities of such series, (xi) the establishment of any office or agency
pursuant to Section 5.2 hereof, and (xii) any other terms of such series not
inconsistent with this Indenture. Prior to authenticating Securities of any
series, and in accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall receive from the Company the
following at or before the issuance of the initial Security of such series of
Securities, and (subject to Section 8.1 hereof) shall be fully protected in
relying upon:
(1) A Board Resolution authorizing such Company Order or Orders and, if
the form of Securities is established by a Board Resolution or a Company Order
pursuant to a Board Resolution, a copy of such Board Resolution;
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(2) an Opinion of Counsel stating substantially the following subject
to customary qualifications and exceptions:
(A) if the form of Securities has been established by or
pursuant to a Board Resolution, a Company Order pursuant to a Board
Resolution, or in a supplemental indenture as permitted by Section 2.1
hereof, that such form has been established in conformity with this
Indenture;
(B) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application relating to or affecting the
enforcement of creditors and the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except as enforcement of provisions of the
Indenture may be limited by state laws affecting the remedies for the
enforcement of the security provided for in the Indenture;
(C) that the Indenture is qualified to the extent
necessary under the TIA;
(D) that such Securities have been duly authorized and
executed by the Company, and when authenticated by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms,
except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application relating to or affecting the
enforcement of creditors and the application of general principles of
equity (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except as enforcement of provisions of this
Indenture may be limited by state laws affecting the remedies for the
enforcement of the security provided for in this Indenture;
(E) that the issuance of the Securities will not result in any
default under this Indenture, or any other contract, indenture, loan
agreement or other instrument to which the Company is a party or by
which it or any of its property is bound; and
(F) that all consents or approvals of the Minnesota Public
Utilities Commission (or any successor agency) and of any other federal
or state regulatory agency required in connection with the Company's
execution and delivery of this Indenture and such series of Securities
have been obtained and not withdrawn (except that no statement need be
made with respect to state securities laws).
(3) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Securities, will not be
in default under any of the
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terms or covenants contained in the Indenture, and (ii) all conditions that must
be met by the Company to issue Securities under this Indenture have been met.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Security:
(1) if the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee;
(2) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors, executive
officers or a trust committee of directors and/or responsible officers
determines that such action would expose the Trustee to personal liability to
Holders of any outstanding Securities.
(e) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
(f) If all Securities of a series are not to be authenticated and
issued at one time, the Company shall not be required to deliver the Company
Order, Board Resolutions, Officers' Certificate and Opinion of Counsel
(including any such that would be otherwise required pursuant to Section 14.5
hereof) described in Section 2.5(c) hereof at or prior to the authentication of
each Security of such series, if such items are delivered at or prior to the
time of authentication of the first Security of such series to be authenticated
and issued. If all of the Securities of a series are not authenticated and
issued at one time, for each issuance of Securities after the initial issuance
of Securities, the Company shall be required only to deliver to the Trustee the
Security and a written request (executed by one of the Chairman, the President,
any Vice President, the Treasurer, or an Assistant Treasurer, and the Secretary
or an Assistant Secretary of the Company) to the Trustee to authenticate such
Security and to deliver such Security in accordance with the instructions
specified by such request. Any such request shall constitute a representation
and warranty by the Company that the statements made in the Officers'
Certificate delivered to the Trustee prior to the authentication and issuance of
the first Security of such series are true and correct on the date thereof as if
made on and as of the date thereof.
Section 2.6. Exchange And Registration Of Transfer Of Securities.
(a) Subject to Section 2.13 hereof, Securities may be exchanged for one
or more new Securities of any authorized denominations and of a like aggregate
principal amount, series and
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stated maturity and having the same terms and Original Issue Date or Dates.
Securities to be exchanged shall be surrendered at any of the offices or
agencies to be maintained pursuant to Section 5.2 hereof, and the Trustee shall
deliver in exchange therefor the Security or Securities which the Securityholder
making the exchange shall be entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall register or cause to be registered Securities and
shall register or cause to be registered the transfer of Securities as in this
Article II provided. Such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, such register shall be open for inspection by the Company.
Upon due presentment for registration of transfer of any Security at any such
office or agency, the Company shall execute and the Trustee shall register,
authenticate and deliver in the name of the transferee or transferees one or
more new Securities of any authorized denominations and of a like aggregate
principal amount, series and stated maturity and having the same terms and
Original Issue Date or Dates.
(c) All Securities presented for registration of transfer or for
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee and duly executed by the Holder or the attorney in fact
of such Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Trustee shall not be required to exchange or register a
transfer of any Securities selected, called or being called for redemption
(including Securities, if any, redeemable at the option of the Holder provided
such Securities are then redeemable at such Holder's option) except, in the case
of any Security to be redeemed in part, the portion thereof not to be so
redeemed.
(f) If the principal amount, and applicable premium, of part, but not
all of a Global Security is paid, then upon surrender to the Trustee of such
Global Security, the Company shall execute, and the Trustee shall authenticate,
deliver and register, a Global Security in an authorized denomination in
aggregate principal amount equal to, and having the same terms, Original Issue
Date or Dates and series as, the unpaid portion of such Global Security.
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Securities.
(a) If any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company shall execute, and upon its request
the Trustee shall authenticate and deliver, a new Security of like form and
principal amount and having the same terms and Original Issue Date or Dates and
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Security, or in lieu of and in substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall
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furnish to the Company, the Trustee and any paying agent or Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft of a Security, the
applicant shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
(b) The Trustee shall authenticate any such substituted Security and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith. If any Security which has matured, is about to mature, has been
redeemed or called for redemption shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substituted Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company, the Trustee and any paying agent or Authenticating Agent such security
or indemnity as may be required by them to save each of them harmless and, in
case of destruction, loss or theft, evidence satisfactory to the Company and the
Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.
(c) Every substituted Security issued pursuant to this Section 2.7 by
virtue of the fact that any Security is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not such destroyed, lost or stolen Security shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
and shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.8. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute and the Trustee shall authenticate and
deliver temporary Securities (printed, lithographed or otherwise reproduced).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Securities. Without
unreasonable delay the Company shall execute and shall deliver to the Trustee
definitive Securities and thereupon any or all temporary Securities shall be
surrendered in exchange therefor at the corporate trust office of the Trustee,
and the Trustee shall authenticate, deliver and register in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities. Such exchange shall be made by the Company at its own expense and
without any charge therefor to the Securityholders. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities authenticated and delivered
hereunder.
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Section 2.9. Cancellation Of Securities Paid, Etc. All Securities surrendered
for the purpose of payment, redemption, exchange or registration of transfer
shall be surrendered to the Trustee for cancellation and promptly canceled by it
and no Securities shall be issued in lieu thereof except as expressly permitted
by this Indenture. The Company's acquisition of any Securities shall operate as
a redemption or satisfaction of the indebtedness represented by such Securities
and such Securities shall be surrendered by the Company to and canceled by the
Trustee.
Section 2.10. Interest Rights Preserved. Each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Security
shall carry all the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security, and each such Security shall be so dated
that neither gain nor loss of interest shall result from such transfer, exchange
or substitution.
Section 2.11. Special Record Date. If and to the extent that the Company fails
to make timely payment or provision for timely payment of interest on any series
of Securities (other than on an Interest Payment Date that is a maturity date),
that interest shall cease to be payable to the Persons who were the
Securityholders of such series at the applicable Regular Record Date. In that
event, when moneys become available for payment of the interest, the Trustee
shall (a) establish a date of payment of such interest and a Special Record Date
for the payment of that interest, which Special Record Date shall be not more
than 15 or fewer than 10 days prior to the date of the proposed payment and (b)
mail notice of the date of payment and of the Special Record Date not fewer than
10 days preceding the Special Record Date to each Securityholder of such series
at the close of business on the 15th day preceding the mailing at the address of
such Securityholder, as it appeared on the register for the Securities. On the
day so established by the Trustee the interest shall be payable to the Holders
of the applicable Securities at the close of business on the Special Record
Date.
Section 2.12. Payment Of Securities. Payment of the principal, interest and
premium on all Securities shall be payable as follows:
(a) On or before 9:30 a.m., New York City time, of the day on which
payment of principal, interest and premium is due on any Global Security
pursuant to the terms thereof, the Company shall deliver to the Trustee funds
available on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to withdraw sufficient
funds from an account maintained by the Company with the Trustee or such other
method as is acceptable to the Trustee and the Depository. On or before 10:00
a.m., New York City time, or such other time as shall be agreed upon between the
Trustee and the Depository, of the day on which any payment of interest is due
on any Global Security (other than at maturity), the Trustee shall pay to the
Depository such interest in same day funds. On or before 10:00 a.m., New York
City time or such other time as shall be agreed upon between the Trustee and the
Depository, of the day on which principal, interest payable at maturity and
premium, if any, is due on any Global Security, the Trustee shall deposit with
the Depository the amount equal to the principal, interest payable at maturity
and premium, if any, by wire transfer into the account specified by the
Depository. As a condition to the payment, at maturity or upon
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redemption, of any part of the principal of, interest on and applicable premium
of any Global Security, the Depository shall surrender, or cause to be
surrendered, such Global Security to the Trustee, whereupon a new Global
Security shall be issued to the Depository pursuant to Section 2.6(f) hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the Security
shall be payable in immediately available funds when due upon presentation and
surrender of such Security at the corporate trust office of the Trustee or at
the authorized office of any paying agent. Interest on any Security that is not
a Global Security (other than interest payable at maturity) shall be paid to the
Holder thereof as its name appears on the register by check payable in
clearinghouse funds; provided that if the Trustee receives a written request
from any Holder of Securities, the aggregate principal amount of which having
the same Interest Payment Date equals or exceeds $10,000,000, on or before the
applicable Regular Record Date for such Interest Payment Date, interest shall be
paid by wire transfer of immediately available funds to a bank within the
continental United States designated by such Holder in its request or by direct
deposit into the account of such Holder designated by such Holder in its request
if such account is maintained with the Trustee or any paying agent.
Section 2.13. Securities Issuable In The Form Of A Global Security.
(a) If the Company shall establish pursuant to Section 2.5 hereof that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 2.5 hereof and the Company Order
delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, shall be denominated in an
amount equal to the aggregate principal amount of, and shall have the same terms
as, the outstanding Securities of such series to be represented by such Global
Security or Securities, (ii) shall be registered in the name of the Depository
or its nominee, (iii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "This Security is a Global Security
registered in the name of the Depository (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository. Unless this Global Security is presented
by an authorized representative of The Depository Trust Company (55 Water
Street, New York, New York), to the trustee 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., 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" or such other legend as may be required by the rules and regulations of
the Depository.
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(b) Notwithstanding any other provision of Section 2.6 hereof or of
this Section 2.13, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in part, only as described
in the legend thereto.
(c) (i) If at any time the Depository for a Global Security notifies
the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time the Depository for the Global Security shall
no longer be eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to such Global Security. If a
successor Depository for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 2.5(c)(vi) hereof
shall no longer be effective with respect to the series of Securities evidenced
by such Global Security and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, shall
authenticate and deliver, individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. The Trustee
shall not be charged with knowledge or notice of the ineligibility of a
Depository unless a responsible officer assigned to and working in its corporate
trustee administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion
determine that all outstanding (but not less than all) Securities of a series
issued or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities in exchange for
such Global Security, shall authenticate and deliver individual Securities of
like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Securities in
exchange for such Global Security or Securities.
(iii) In any exchange provided for in any of the preceding two
paragraphs, the Company will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depository for delivery to the
persons in whose names such Securities are so registered, or if the
Depository shall refuse or be unable to deliver such Securities, the Trustee
shall deliver such Securities to the persons in whose names such Securities
are registered, unless otherwise agreed upon between the Trustee and the
Company, in which event the Company shall cause the Securities to be
delivered to the persons in whose names such Securities are registered.
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(d) Neither the Company, the Trustee, any Authenticating Agent nor any
paying agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon 30 days' written notice to the Depository but not prior to the
first Interest Payment Date of the respective Global Securities, the Depository
shall be required to surrender any two or more Global Securities which have
identical terms, including, without limitation, identical maturities, interest
rates and redemption provisions (but which may have differing Original Issue
Dates) to the Trustee, and the Company shall execute and the Trustee shall
authenticate and deliver to, or at the direction of, the Depository a Global
Security in principal amount equal to the aggregate principal amount of, and
with all terms identical to, the Global Securities surrendered thereto and that
shall indicate each applicable Original Issue Date and the principal amount
applicable to each such Original Issue Date. The exchange contemplated in this
subsection shall be consummated at least 30 days prior to any Interest Payment
Date applicable to any of the Global Securities surrendered to the Trustee. Upon
any exchange of any Global Security with two or more Original Issue Dates,
whether pursuant to this Section or pursuant to Section 2.6 or Section 3.3
hereof, the aggregate principal amount of the Securities with a particular
Original Issue Date shall be the same before and after such exchange, after
giving effect to any retirement of Securities and the Original Issue Dates
applicable to such Securities occurring in connection with such exchange.
ARTICLE III.
REDEMPTION OF SECURITIES
Section 3.1. Applicability Of Article. Such of the Securities as are, by their
terms, redeemable prior to their stated maturity date at the option of the
Company, may be redeemed by the Company at such times, in such amounts and at
such prices as may be specified therein and in accordance with the provisions of
this Article III.
Section 3.2. Notice Of Redemption; Selection Of Securities.
(a) The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution which shall be given with notice of redemption
to the Trustee at least 45 days (or such shorter period acceptable to the
Trustee in its sole discretion) prior to the redemption date specified in such
notice.
(b) Notice of redemption to each Holder of Securities to be redeemed as
a whole or in part shall be given by the Trustee, in the manner provided in
Section 14.10 hereof, no less than 30 or more than 60 days prior to the date
fixed for redemption. Any notice which is given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Securityholder receives the notice. In any case, failure duly to give such
notice, or any defect
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in such notice, to the Holder of any Security designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
(c) Each such notice shall specify the date fixed for redemption, the
places of redemption and the redemption price at which such Securities are to be
redeemed, and shall state that payment of the redemption price of such
Securities or portion thereof to be redeemed will be made upon surrender of such
Securities at such places of redemption, that interest accrued to the date fixed
for redemption will be paid as specified in such notice, and that from and after
such date interest thereon shall cease to accrue. If less than all of a series
of Securities having the same terms are to be redeemed, the notice shall specify
the Securities or portions thereof to be redeemed. If any Security is to be
redeemed in part only, the notice which relates to such Security shall state the
portion of the principal amount thereof to be redeemed, and shall state that,
upon surrender of such Security, a new Security or Securities having the same
terms in aggregate principal amount equal to the unredeemed portion thereof will
be issued.
(d) Unless otherwise provided by a supplemental indenture or Company
Order under Section 2.5 hereof, if less than all of a series of Securities is to
be redeemed, the Trustee shall select in such manner as it shall deem
appropriate and fair in its discretion the particular Securities to be redeemed
in whole or in part and shall thereafter promptly notify the Company in writing
of the Securities so to be redeemed. If less than all of a series of Securities
represented by a Global Security is to be redeemed, the particular Securities or
portions thereof of such series to be redeemed shall be selected by the
Depository for such series of Securities in such manner as the Depository shall
determine. Securities shall be redeemed only in denominations of $1,000,
provided that any remaining principal amount of a Security redeemed in part
shall be a denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of redemption the
Company shall not have irrevocably directed the Trustee to apply funds deposited
with the Trustee or held by it and available to be used for the redemption of
Securities to redeem all the Securities called for redemption, such notice, at
the election of the Company, may state that it is subject to the receipt of the
redemption moneys by the Trustee before the date fixed for redemption and that
such notice shall be of no effect unless such moneys are so received before such
date.
Section 3.3. Payment Of Securities On Redemption; Deposit Of Redemption Price.
(a) If notice of redemption for any Securities shall have been given as
provided in Section 3.2 hereof and such notice shall not contain the language
permitted at the Company's option under Section 3.2(e) hereof, such Securities
or portions of Securities called for redemption shall become due and payable on
the date and at the places stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption of such
Securities. Interest on the Securities or portions thereof so called for
redemption shall cease to accrue and such Securities or portions thereof shall
be deemed not to be entitled to any benefit under this Indenture except to
receive payment of the redemption price together with interest accrued thereon
to the date fixed for redemption. Upon presentation and surrender of such
Securities at such a place of payment in such notice specified, such Securities
or the specified
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portions thereof shall be paid and redeemed at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.2 hereof and such notice shall contain the language permitted at the
Company's option under Section 3.2(e) hereof, such Securities or portions of
Securities called for redemption shall become due and payable on the date and at
the places stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption of such Securities, and
interest on the Securities or portions thereof so called for redemption shall
cease to accrue and such Securities or portions thereof shall be deemed not to
be entitled to any benefit under this Indenture except to receive payment of the
redemption price together with interest accrued thereon to the date fixed for
redemption; provided that, in each case, the Company shall have deposited with
the Trustee or a paying agent on or prior to such redemption date an amount
sufficient to pay the redemption price together with interest accrued to the
date fixed for redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Securities at such a place of payment in such
notice specified, such Securities or the specified portions thereof shall be
paid and redeemed at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption. If the Company shall not make
such deposit on or prior to the redemption date, the notice of redemption shall
be of no force and effect and the principal on such Securities or specified
portions thereof shall continue to bear interest as if the notice of redemption
had not been given.
(c) No notice of redemption of Securities shall be mailed during the
continuance of any Event of Default, except (1) that, when notice of redemption
of any Securities has been mailed, the Company shall redeem such Securities but
only if funds sufficient for that purpose have prior to the occurrence of such
Event of Default been deposited with the Trustee or a paying agent for such
purpose, and (2) that notices of redemption of all outstanding Securities may be
given during the continuance of an Event of Default.
(d) Upon surrender of any Security redeemed in part only, the Company
shall execute, and the Trustee shall authenticate, deliver and register, a new
Security or Securities of authorized denominations in aggregate principal amount
equal to, and having the same terms, Original Issue Date or Dates and series as,
the unredeemed portion of the Security so surrendered.
ARTICLE IV.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 4.1. Satisfaction And Discharge. If at any time:
(a) the Company shall have paid or caused to be paid the principal of
and premium, if any, and interest on all the outstanding Securities, as and when
the same shall have become due and payable,
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(b) the Company shall have delivered to the Trustee for cancellation
all outstanding Securities, or
(c) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash, or (C) a combination of cash and U.S. Government Obligations, in any
case sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered
to the Trustee, to pay at maturity or the applicable redemption date
(provided that notice of redemption shall have been duly given or irrevocable
provision satisfactory to the Trustee shall have been duly made for the
giving of any notice of redemption) all outstanding Securities, including
principal and any premium and interest due or to become due to such date of
maturity, as the case may be and, unless all outstanding Securities are to be
due within 90 days of such deposit by redemption or otherwise, shall also
deliver to the Trustee an Opinion of Independent Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or similar pronouncement by the Internal Revenue
Service or that there has been a change of law, in either case to the effect
that the Holders of the Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance or discharge
of the Indenture, and if, in any such case, the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof, and any premium and
interest thereon, upon the original stated due dates therefor or upon the
applicable redemption date (but not upon acceleration of maturity) from the
moneys and U.S. Government Obligations held by the Trustee pursuant to
Section 4.2 hereof, (iv) the rights and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them, (vi) the obligations and rights of the Trustee and the Company under
Section 4.4 hereof, and (vii) the duties of the Trustee with respect to any
of the foregoing), and the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and its obligations under,
the Securities, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture and the Trustee shall at the
request of the Company return to the Company all property and money held by
it under this Indenture and determined by it from time to time in accordance
with the certification pursuant to this Section 4.1(c) to be in excess of the
amount required to be held under this Section.
If the Securities are deemed to be paid and discharged pursuant to
Section 4.1(c) hereof, within 15 days after those Securities are so deemed to be
paid and discharged, the Trustee shall cause a written notice to be given to
each Holder in the manner provided by Section 14.10 hereof. The notice shall:
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(i) state that the Securities are deemed to be paid and
discharged;
(ii) set forth a description of any U.S. Government Obligations and
cash held by the Trustee as described above; and
(iii) if any Securities will be called for redemption, specify the
date or dates on which those Securities are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.6 hereof, shall
survive.
Section 4.2. Deposited Moneys To Be Held In Trust By Trustee. All moneys and
U.S. Government Obligations deposited with the Trustee pursuant to Section 4.1
hereof, shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the Holders of the particular Securities for the payment or
redemption of which such moneys and U.S. Government Obligations have been
deposited with the Trustee of all sums due and to become due thereon for
principal and premium, if any, and interest.
Section 4.3. Paying Agent To Repay Moneys Held. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Securities (other than the Trustee) shall, upon written demand by an Authorized
Agent, be repaid to the Company or paid to the Trustee, and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
Section 4.4. Return Of Unclaimed Moneys. Any moneys deposited with or paid to
the Trustee for payment of the principal of or any premium or interest on any
Securities and not applied but remaining unclaimed by the Holders of such
Securities for two years after the date upon which the principal of or any
premium or interest on such Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on written demand
by an Authorized Agent, and all liability of the Trustee shall thereupon cease;
and any Holder of any of such Securities shall thereafter look only to the
Company for any payment which such Holder may be entitled to collect.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1. Payment Of Principal, Premium And Interest. The Company covenants
and agrees for the benefit of the Holders of the Securities that it will duly
and punctually pay or cause to be paid the principal of and any premium and
interest on each of the Securities at the places, at the respective times and in
the manner provided in such Securities or in this Indenture.
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Section 5.2 Office For Notices And Payments, Etc. So long as any of the
Securities remain outstanding, the Company at its option may cause to be
maintained in the Borough of Manhattan, the City and State of New York, or
elsewhere, an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and
where, at any time when the Company is obligated to make a payment of principal
and premium upon Securities, the Securities may be surrendered for payment, and
may maintain at any such office or agency and at its principal office an office
or agency where notices and demands to or upon the Company in respect of the
Securities or of this Indenture may be served. The designation of any such
office or agency shall be made by Company Order pursuant to Section 2.5 hereof
or at any subsequent time pursuant to this Section 5.2 hereof. The Company will
give to the Trustee written notice of the location of each such office or agency
and of any change of location thereof. If the Company shall fail to give such
notice of the location or of any change in the location of any such office or
agency, presentations may be made and notices and demands may be served at the
corporate trust office of the Trustee.
Section 5.3 Appointments To Fill Vacancies In Trustee's Office. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 8.11 hereof, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 5.4 Provision As To Paying Agent. The Trustee shall be the paying agent
for the Securities and, at the option of the Company, the Company may appoint
additional paying agents (including without limitation itself). Whenever the
Company shall appoint an additional paying agent, it shall cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to this Section 5.4:
(1) that it will hold in trust for the benefit of the Holders and the
Trustee all sums held by it as such agent for the payment of the
principal of and any premium or interest on the Securities (whether
such sums have been paid to it by the Company or by any other obligor
on such Securities) in trust for the benefit of the Holders of such
Securities;
(2) that it will give to the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any
payment of the principal of and any premium or interest on such
Securities when the same shall be due and payable; and
(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect to any
Securities, it will, on or before each due date of the principal of and any
premium or interest on such Securities, set aside, segregate and hold in
trust for the benefit of the Holders of such Securities a sum sufficient to
pay such principal and any premium or interest so becoming due and will
notify the Trustee of any failure by it to take such action and of any
failure by the Company (or by any other obligor on such Securities) to make
any payment of the principal of and any premium or interest on such
Securities when the same shall become due and payable.
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Whenever the Company shall have one or more paying agents, it will, on
or prior to each due date of the principal of (and premium, if any) or
interest, if any, on any Securities, deposit with such paying agent a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, if any, and (unless such
paying agent is the Trustee) the Company shall promptly notify the Trustee of
any failure on its part to so act.
Anything in this Section 5.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.4, such sums to be held by the Trustee upon the
trusts herein contained.
Anything in this Section 5.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.4 is subject to
Sections 4.3 and 4.4 hereof.
Section 5.5 Certificates And Notice To Trustee. The Company shall, on or before
May 1 of each year, beginning in 1999, deliver to the Trustee a certificate from
its principal executive officer, principal financial officer or principal
accounting officer covering the preceding calendar year and stating whether or
not, to the knowledge of such party, the Company has complied with all
conditions and covenants under this Indenture, and, if not, describing in
reasonable detail any failure by the Company to comply with any such conditions
or covenants. For purposes of this Section, compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
ARTICLE VI.
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.1. Securityholder Lists.
(a) The Company shall furnish or cause to be furnished to the Trustee
semiannually, not later than 15 days after each Regular Record Date for each
Interest Payment Date that is not a maturity date and at such other times as
such Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company, or
any paying agents other than the Trustee, as to the names and addresses of the
Holders of Securities, obtained since the date as of which the next previous
list, if any, was furnished. Any such list may be dated as of a date not more
than 15 days prior to the time such information is furnished or caused to be
furnished and need not include information received after such date; provided
that as long as the Trustee is the registrar for the Securities, no such list
shall be required to be
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furnished. The Trustee shall preserve any list provided to it pursuant to this
Section until such time as the Company or any paying agent, as applicable, shall
provide it with a more recent list.
(b) Within five business days after the receipt by the Trustee of a
written application by any three or more Holders stating that the applicants
desire to communicate with other Holders with respect to their rights under the
Indenture or under the Securities, and accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, and by
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, the Trustee shall,
at its election, either:
(i) afford to such applicants access to all information furnished to or
received by the Trustee pursuant to Section 6.1(a) hereof or, if applicable, in
its capacity as registrar to the Securities; or
(ii) inform such applicants as to the approximate number of Holders
according to the most recent information furnished to or received by the Trustee
under Section 6.1(a) hereof or if applicable in its capacity as registrar for
the Securities, and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing, unless
within five days after such tender the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Every Holder of a Security, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any paying agent nor any Authenticating Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
this Section.
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Section 6.2. Securities And Exchange Commission Reports.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations, including, in the case of annual reports,
if required by such rules and regulations, certificates or opinions of
independent public accountants, conforming to the requirements of Section 14.5,
as to compliance with conditions or covenants, compliance with which is subject
to verification by accountants; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
Section 6.3. Reports By The Trustee.
(a) Within 60 days after July 15 of each year, beginning with the July
15 after the first issuance of Securities hereunder, the Trustee shall transmit
by mail a brief report dated as of such date that complies with Section 313(a)
of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section shall, at
the time of such transmission to such Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee promptly upon the listing of
such Securities on any stock exchange.
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(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Securities, as their names and
addresses appear in the register for the Securities;
(2) by mail to such Holders of Securities as have, within the
two years preceding such transmission, filed their names and addresses
with the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
6.3(b) and (c) hereof, to all Holders of Securities whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 6.1 hereof; and
(4) at the time such report is transmitted to the Holders of
the Securities, to each exchange on which Securities are listed and
also with the Commission.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS OF
DEFAULT
Section 7.1. Events Of Default.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
(1) default in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or any premium
on any of the Securities as and when the same shall become due and
payable and continuance of such default for five days;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Securities or in this Indenture for a period
of 90 days after the date on which written notice of such failure,
requiring the same to be remedied and stating that such notice is a
"Notice of Default" hereunder, shall have been given to the Company by
the Trustee by registered mail, or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding;
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(4) the entry of a decree or order by a court having
jurisdiction over the Company for relief in respect of the Company
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official of the
Company or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(5) the filing by the Company with respect to itself or its
property of a petition or answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Company or of any substantial part of its property, or the failure
of the Company generally to pay its debts as such debts become due, or
the taking of corporate action by the Company to effectuate any such
action;
then and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of a majority in aggregate principal amount of the Securities then
outstanding, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the principal of all the Securities to be due and
payable immediately and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the
Securities contained to the contrary notwithstanding. This provision, however,
is subject to the condition that if, at any time after the principal of the
Securities shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all of the
Securities and the principal of and any premium on any and all Securities which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and applicable premium
at the rate borne by the Securities to the date of such payment or deposit) and
all sums paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 8.6 hereof, and any and all
defaults under this Indenture, other than the non-payment of principal of and
accrued interest on Securities which shall have become due solely by
acceleration of maturity, shall have been cured or waived -- then and in every
such case such payment or deposit shall cause an automatic waiver of the Event
of Default and its consequences and shall cause an automatic rescission and
annulment of the acceleration of the Securities; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
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(b) If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 7.2 Payment Of Securities On Default; Suit Therefor.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any of the Securities as and when the same shall have become due and
payable whether at the stated maturity thereof, upon redemption thereof
(provided that such redemption is not conditioned upon the deposit of
sufficient moneys for such redemption), upon declaration of
acceleration or otherwise.
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
so become due and payable on all such Securities for principal and any premium
or interest, or both, as the case may be, with interest upon the overdue
principal and any premium and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Securities; and, in addition thereto, such further amounts
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, any
expenses or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith, and any other amounts due the Trustee under Section 8.6
hereof.
(b) If the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may enforce any
such judgment or final decree against the Company or any other obligor on the
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such series of Securities wherever situated, the
moneys adjudged or decreed to be payable.
(c) If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities under the
United States Bankruptcy Code or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the Company or such
other obligor, or in the case of any similar judicial proceedings relative to
the Company or other obligor upon the Securities, or to the creditors or
property of the
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Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to this Section 7.2, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and any premium and interest
owing and unpaid in respect of the Securities, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any amounts due to the Trustee under Section 8.6 hereof) and of the Holders of
Securities allowed in such judicial proceedings relative to the Company or any
other obligor on the Securities, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses.
(d) All claims and rights of action under this Indenture, or under any
of the Securities, may be enforced by the Trustee without the possession of any
of the Securities, or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities in respect of which such action was taken.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent or to accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 7.3. Application Of Moneys Collected By Trustee. Any moneys collected by
the Trustee with respect to any of the Securities pursuant to this Article shall
be applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such moneys, upon presentation of the several Securities,
and stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to
Section 8.6 hereof;
SECOND: If the principal of the outstanding Securities in respect of which such
moneys have been collected shall not have become due and be unpaid, to the
payment of interest on the Securities, in the order of the maturity of the
installments of such interest, with interest (to the extent allowed by law and
to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by the Securities, such
payments to be made ratably to the persons entitled thereto, and then to the
payment to the Holders entitled thereto of the unpaid principal of and
applicable premium on any of the Securities which shall have become due (other
than Securities previously called for redemption for the payment of which moneys
are held pursuant to the provisions of this Indenture), whether at stated
maturity or by redemption, in the order of their due dates, beginning with the
earliest due date, and if the amount available is not sufficient to pay in full
all Securities due on any particular date, then to the payment thereof
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ratably, according to the amounts of principal and applicable premium due on
that date, to the Holders entitled thereto, without any discrimination or
privilege;
THIRD: If the principal of the outstanding Securities in respect of which
such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Securities for principal and any premium and interest thereon, with interest
on the overdue principal and any premium and (to the extent allowed by law
and to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Securities; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities, then to the payment of such principal and any
premium and interest without preference or priority of principal and any
premium over interest, or of interest over principal and any premium or of
any installment of interest over any other installment of interest, or of any
Security over any other Security, ratably to the aggregate of such principal
and any premium and accrued and unpaid interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same,
or as a court of competent jurisdiction may determine.
Section 7.4. Proceedings By Securityholders.
(a) No Holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default with respect to such Security and of the
continuance thereof, as hereinabove provided, and unless also Securityholders of
a majority in aggregate principal amount of the Securities then outstanding
affected by such Event of Default shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Security to receive payment of the principal of and
any premium and interest on such Security, on or after the respective due dates
expressed in such Security or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
Section 7.5. Proceedings By Trustee. In case of an Event of Default hereunder
the Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture, by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in
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bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted to it under this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 7.6 Remedies Cumulative And Continuing. All powers and remedies given
by this Article VII to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any powers
and remedies hereof or of any other powers and remedies available to the Trustee
or the Holders of the Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture, and no delay or omission of the Trustee or of any Holder of
any of the Securities in exercising any right or power accruing upon any default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to Section 7.4 hereof, every power and remedy given by
this Article VII or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 7.7. Direction Of Proceedings And Waiver Of Defaults By Majority Of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
that (subject to Section 8.1 hereof) the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or responsible officers
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability or would be unduly prejudicial to the rights of
Securityholders not joining in such directions. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may on
behalf of all of the Holders of the Securities waive any past default or Event
of Default hereunder and its consequences except a default in the payment of
principal of or any premium or interest on the Securities. Upon any such waiver
the Company, the Trustee and the Holders of the Securities shall be restored to
their former positions and rights hereunder, respectively, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 7.7, said default or Event
of Default shall for all purposes of the Securities and this Indenture be deemed
to have been cured and to be not continuing.
Section 7.8. Notice Of Default. The Trustee shall, within 90 days after the
occurrence of a default, give to all Holders of the Securities, in the manner
provided in Section 14.10, notice of such default, unless such default shall
have been cured before the giving of such notice, the term "default" for the
purpose of this Section 7.8 being hereby defined to be any event which is or
after notice or lapse of time or both would become an Event of Default; provided
that, except in the case of default in the payment of the principal of or any
premium or interest on any of the
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Securities, or in the payment of any sinking or purchase fund installments, the
Trustee shall be protected in withholding such notice if and so long as its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees or responsible officers in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
The Trustee shall not be charged with knowledge of any Event of Default unless a
responsible officer of the Trustee assigned to the corporate trustee department
of the Trustee shall have actual knowledge of such Event of Default.
Section 7.9. Undertaking To Pay Costs. All parties to this Indenture agree, and
each Holder of any Security by acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but this Section 7.9 shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of
the Securities outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or any premium or interest on
any Security on or after the due date expressed in such Security or the
applicable redemption date.
ARTICLE VIII.
CONCERNING THE TRUSTEE
Section 8.1. Duties And Responsibilities Of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. If an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after
the curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable
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except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
Section 7.7 hereof relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture.
Section 8.2. Reliance On Documents, Opinions, Etc. Except as otherwise provided
in Section 8.1 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, note or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof is herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred by
such exercise;
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(e) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, note or other paper or document, unless requested in writing to
do so by the Holders of at least a majority in principal amount of the then
outstanding Securities; provided that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by this
Indenture, the Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) no provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided that the Trustee shall not be liable for the conduct or acts of any
such agent or attorney that shall have been appointed in accordance herewith
with due care.
Section 8.3. No Responsibility For Recitals, Etc. The recitals contained herein
and in the Securities (except in the certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee in conformity with this Indenture. The Trustee
shall not be responsible for recording or filing this Indenture, any
supplemental indenture, or any financing or continuation statement in any public
office at any time or times.
Section 8.4. Trustee, Authenticating Agent, Paying Agent Or Registrar May Own
Securities. The Trustee and any Authenticating Agent or paying agent in its
individual or other capacity, may become the owner or pledgee of Securities with
the same rights it would have if it were not Trustee, Authenticating Agent or
paying agent.
Section 8.5. Moneys To Be Held In Trust. Subject to Section 4.4 hereof, all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
may allow and credit to the Company interest on any money
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received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
Section 8.6. Compensation And Expenses Of Trustee. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law in
regard to the compensation of a trustee of an express trust), and the Company
shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and agents, including any
Authenticating Agents, and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability. The obligations of the
Company under this Section 8.6 to compensate the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of any particular Securities.
Section 8.7. Officers' Certificate As Evidence. Whenever in the administration
of this Indenture, the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to the taking, suffering or omitting of
any action hereunder, such matter (unless other evidence in respect thereof is
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such Officers'
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under this Indenture in reliance thereon.
Section 8.8 Conflicting Interest Of Trustee. The Trustee shall be subject to
and shall comply with the provisions of Section 310 of the TIA; provided
that, to the extent permitted by law, Norwest Bank Minnesota, National
Association shall not be deemed to have a conflicting interest for purposes
of Section 310(b) of the TIA because of its capacity as trustee under the
Company's pollution control and resource recovery bonds. Nothing in this
Indenture shall be deemed to prohibit the Trustee or the Company from making
any application permitted pursuant to such section.
Section 8.9. Existence And Eligibility Of Trustee. There shall at all times be
a Trustee hereunder which Trustee shall at all times be a corporation organized
and doing business under the laws of the United States or any State thereof or
of the District of Columbia (or a corporation or other Person permitted to act
as trustee by the Commission), subject to supervision or examination by such
bodies and authorized under such laws to exercise corporate trust powers and
having a combined capital and surplus of at least $150,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid authority, then for the purposes of this
Section 8.9, the combined capital and surplus
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shall be deemed to be as set forth in its most recent report of condition so
published. No obligor upon the Securities or Person directly or indirectly
controlling, controlled by, or under common control with such obligor shall
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 8.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10 hereof.
Section 8.10. Resignation Or Removal Of Trustee.
(a) Pursuant to the provisions of this Article, the Trustee may at any
time resign and be discharged of the trusts created by this Indenture by giving
written notice to the Company specifying the day upon which such resignation
shall take effect, and such resignation shall take effect immediately upon the
later of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Securities or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is continuing, and
no event has occurred and is continuing that, with the giving of notice or the
lapse of time or both, would become an Event of Default, the Company may remove
any Trustee upon written notice to the Holder of each Security outstanding and
the Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 8.9 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide Holder
for at least six months, (2) the Trustee shall fail to comply with Section 8.8
hereof after written request therefor by the Company or any such Holder, or (3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Trustee may be removed forthwith by an instrument or concurrent instruments in
writing filed with the Trustee and either:
(1) signed by the President or any Vice President of the
Company and attested by the Secretary or an Assistant Secretary of the
Company; or
(2) signed and acknowledged by the Holders of a majority in
principal amount of outstanding Securities or by their attorneys in
fact duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.11 hereof.
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Section 8.11. Appointment Of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment of a
Successor Trustee to the Holder of each Security outstanding following any such
appointment.
(c) If no appointment of a successor Trustee shall be made pursuant to
Section 8.11(a) hereof within 60 days after appointment shall be required, any
Securityholder or the resigning Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe, appoint a successor
Trustee.
(d) Any Trustee appointed under this Section 8.11 as a successor
Trustee shall be a bank or trust company eligible under Section 8.9 hereof and
qualified under Section 8.8 hereof.
Section 8.12. Acceptance By Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.11 hereof
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to Section 8.6 hereof, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing in order more fully and certainly to
vest in and confirm to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to Section 8.6 hereof.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.12 unless at the time of such acceptance such successor Trustee shall
be qualified under Section 8.8 hereof and eligible under Section 8.9 hereof.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section 8.12, the successor Trustee shall mail notice of its succession
hereunder to all Holders of Securities as the names and addresses of such
Holders appear on the registry books.
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Section 8.13. Succession By Merger, Etc.
(a) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such corporation shall be otherwise qualified and
eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificates of the Trustee shall have; provided that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 8.14. Limitations On Rights Of Trustee As A Creditor.
The Trustee shall be subject to, and shall comply with, the provisions
of Section 311 of the TIA.
Section 8.15. Authenticating Agent.
(a) There may be one or more Authenticating Agents appointed by the
Trustee with the written consent of the Company, with power to act on its behalf
and subject to the direction of the Trustee in the authentication and delivery
of Securities in connection with transfers and exchanges under Sections 2.6,
2.7, 2.8, 2.13, 3.3, and 12.4 hereof, as fully to all intents and purposes as
though such Authenticating Agents had been expressly authorized by those
Sections to authenticate and deliver Securities. For all purposes of this
Indenture, the authentication and delivery of Securities by any Authenticating
Agent pursuant to this Section 8.15 shall be deemed to be the authentication and
delivery of such Securities "by the Trustee." Any such Authenticating Agent
shall be a bank or trust company or other Person of the character and
qualifications set forth in Section 8.9 hereof.
(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 Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise
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eligible under this Section 8.15, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time 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 under this Section 8.15, the
Trustee may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice of such
appointment to the Company and shall mail, in the manner provided in Section
14.10, notice of such appointment to the Holders of Securities.
(d) The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with Section 8.6 hereof.
(e) Sections 8.2, 8.3, 8.6, 8.7 and 8.9 hereof shall be applicable to
any Authenticating Agent.
ARTICLE IX.
CONCERNING THE SECURITYHOLDERS
Section 9.1. Action By Securityholders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, (b) by the record of such Securityholders voting in favor
thereof at any meeting of Securityholders duly called and held in accordance
with Article X hereof, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Securityholders.
Section 9.2. Proof Of Execution By Securityholders.
(a) Subject to Sections 8.1, 8.2 and 10.5 hereof, proof of the
execution of any instruments by a Securityholder or the agent or proxy for such
Securityholder shall be sufficient if made in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee. The ownership of Securities shall be
proved by the register for the Securities maintained by the Trustee.
(b) The record of any Securityholders' meeting shall be proven in the
manner provided in Section 10.6 hereof.
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Section 9.3. Who Deemed Absolute Owners. Subject to Sections 2.4(f) and 9.1
hereof, the Company, the Trustee, any paying agent and any Authenticating Agent
shall deem the person in whose name any Security shall be registered upon the
register for the Securities to be, and shall treat such person as, the absolute
owner of such Security (whether or not such Security shall be overdue) for the
purpose of receiving payment of or on account of the principal and premium, if
any, and interest on such Security, and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Authenticating Agent shall
be affected by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon any such Security to the
extent of the sum or sums so paid.
Section 9.4. Company-Owned Securities Disregarded. In determining whether the
Holders of the requisite aggregate principal amount of outstanding Securities
have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities which the Trustee
knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith to third parties may be regarded as outstanding
for the purposes of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to take action with respect
to such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
Section 9.5. Revocation Of Consents; Future Holders Bound. Except as may be
otherwise required in the case of a Global Security by the applicable rules and
regulations of the Depository, at any time prior to the taking of any action by
the Holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action, any Holder of a
Security, which has been included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at the
corporate trust office of the Trustee and upon proof of ownership as provided in
Section 9.2(a) hereof, revoke such action so far as it concerns such Security.
Except as aforesaid, any such action taken by the Holder of any Security shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange, substitution
or upon registration of transfer therefor, irrespective of whether or not any
notation thereof is made upon such Security or such other Securities.
Section 9.6. Record Date For Securityholder Acts. If the Company shall solicit
from the Securityholders any request, demand, authorization, direction, notice,
consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of
Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other act, but the Company shall have no obligation
to do so. If such a
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record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other act may be given before or after the record date, but
only the Securityholders of record at the close of business on the record date
shall be deemed to be Securityholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Securities
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other act, and for that purpose the
outstanding Securities shall be computed as of the record date; provided that no
such request, demand, authorization, direction, notice, consent, waiver or other
act by the Securityholders on the record date shall be deemed effective unless
it shall become effective pursuant to this Indenture not later than six months
after the record date. Any such record date shall be at least 30 days prior to
the date of the solicitation to the Securityholders by the Company.
ARTICLE X.
SECURITYHOLDERS' MEETING
Section 10.1. Purposes Of Meetings. A meeting of Securityholders may be called
at any time and from time to time pursuant to this Article X for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Event of Default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to Article VII;
(b) to remove the Trustee pursuant to Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 12.2 hereof; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities, as
the case may be, under any other provision of this Indenture or under applicable
law.
Section 10.2. Call Of Meetings By Trustee. The Trustee may at any time call a
meeting of Holders of Securities to take any action specified in Section 10.1
hereof, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given to Holders of the Securities that may
be affected by the action proposed to be taken at such meeting in the manner
provided in Section 14.10 hereof. Such notice shall be given not less than 20
nor more than 90 days prior to the date fixed for such meeting.
Section 10.3. Call Of Meetings By Company Or Securityholders. If at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% in
aggregate principal amount of the Securities then outstanding, shall have
requested the Trustee to call a meeting of
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Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in
Section 10.1 hereof, by giving notice thereof as provided in Section 10.2
hereof.
Section 10.4. Qualifications For Voting. To be entitled to vote at any meetings
of Securityholders a Person shall (a) be a Holder of one or more Securities
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Securities. The
only Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives (including employees) of the Trustee and its
counsel and any representatives (including employees) of the Company and its
counsel.
Section 10.5. Regulations.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by the Securityholders as provided in Section 10.3 hereof, in which
case the Company or Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by the Holders of a majority
in aggregate principal amount of the Securities present in person or by proxy at
the meeting.
(c) Subject to Section 9.4 hereof, at any meeting each Securityholder
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities held or represented by such Securityholder; provided that no vote
shall be cast or counted at any meeting in respect of any Security ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Securities held by such chairman
or instruments in writing as aforesaid duly designating such chairman as the
person to vote on behalf of other Securityholders. At any meeting of
Securityholders duly called pursuant to Section 10.2 or 10.3 hereof, the
presence of persons holding or representing Securities in an aggregate principal
amount sufficient to take action on any business for the transaction for which
such meeting was called shall constitute a quorum. Any meeting of
Securityholders duly called pursuant to Section 10.2 or 10.3 hereof may be
adjourned from time to time by the Holders of a majority in aggregate principal
amount of the Securities present in person or by proxy at the meeting, whether
or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
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Section 10.6. Voting. The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amount of Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of such meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 10.2 hereof. The record shall show the aggregate principal
amount of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee and the
Trustee shall have the ballots taken at the meeting attached to such duplicate.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section 10.7. Rights Of Trustee Or Securityholders Not Delayed. Nothing in this
Article X shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the Holders
of Securities under any of the provisions of this Indenture or of the
Securities.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
Section 11.1. Company May Consolidate, Etc. Only On Certain Terms. The Company
shall not consolidate with or merge into any other corporation or sell, or
otherwise dispose all or substantially all of its assets unless the corporation
formed by such consolidation or into which the Company is merged or the Person
which receives all or substantially all of the assets pursuant to such sale,
transfer or other disposition shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and premium and
interest on all of the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed. For purposes
of this Article XI the phrase "all or substantially all of its assets" shall
mean 50% or more of the total assets of the Company as shown on the balance
sheet of the Company as of the end of the calendar year immediately preceding
the day of the year in which such determination is made and nothing in this
Indenture shall prevent or hinder the Company from selling, transferring or
otherwise disposing during any calendar year (in one transaction or a series of
transactions) less than 50% of the amount of its total assets as shown on the
balance sheet of the Company as of the end of the immediately preceding calendar
year.
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Section 11.2. Successor Corporation Substituted. Upon any consolidation or
merger, or any sale, transfer or other disposition of all or substantially all
of the assets of the Company in accordance with Section 11.1 hereof, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
ARTICLE XII.
SUPPLEMENTAL INDENTURES
Section 12.1. Supplemental Indentures Without Consent Of Securityholders.
(a) The Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders, for the purpose of supplying any omission, curing any
ambiguity, or curing, correcting or supplementing any defective or
inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Securities issued after the effective date of such change or
elimination;
(3) to establish the form of Securities as permitted by
Section 2.1 hereof or to establish or reflect any terms of any Security
determined pursuant to Section 2.5 hereof;
(4) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(5) to grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed
upon it by law;
(7) to specify further the duties and responsibilities of, and
to define further the relationships among the Trustee, any
Authenticating Agent and any paying agent;
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(8) to add to the covenants of the Company for the benefit of
the Holders, to add security for the Securities or to surrender a right
or power conferred on the Company herein; and
(9) to make any other change that is not prejudicial to the
Trustee or the Holders.
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 12.1 may be
executed by the Company and the Trustee without the consent of the Holders of
any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 12.2 hereof.
Section 12.2. Supplemental Indentures With Consent Of Securityholders.
(a) With the consent (evidenced as provided in Section 9.1 hereof) of
the Holders of a majority in aggregate principal amount of the Securities at the
time outstanding, the Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Securityholders; provided that no such supplemental indenture shall:
(1) change the maturity date of any Security, or reduce the
rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or change the coin or
currency in which the principal of any Security or any premium or
interest thereon is payable, or change the date on which any Security
may be redeemed or repaid at the option of the holder thereof or
adversely affect the rights of the Securityholders to institute suit
for the enforcement of any payment of principal of or any premium or
interest on any Security, in each case without the consent of the
Holder of each Security so affected; or
(2) modify this Section 12.2(a) or reduce the aforesaid
percentage of Securities, the Holders of which are required to consent
to any such supplemental indenture or to reduce the percentage of
Securities, the Holders of which are required to waive Events of
Default, in each case, without the consent of the Holders of all of the
Securities then outstanding.
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(b) Upon the request of the Company, accompanied by a copy of the Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of
Securities under this Section 12.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to this Section 12.2, the Trustee shall give
notice in the manner provided in Section 14.10 hereof, setting forth in general
terms the substance of such supplemental indenture, to all Securityholders. Any
failure of the Trustee to give such notice or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
Section 12.3. Compliance With Trust Indenture Act; Effect Of Supplemental
Indentures. Any supplemental indenture executed pursuant to this Article XII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Securityholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 12.4. Notation On Securities. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article XII
may bear a notation in form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Company shall so determine, new
Securities so modified as approved by the Trustee and the Board of Directors
with respect to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities then
outstanding.
Section 12.5. Evidence Of Compliance Of Supplemental Indenture To Be Furnished
Trustee. The Trustee, subject to Sections 8.1 and 8.2 hereof, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article XII.
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ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.1. Indenture And Securities Solely Corporate Obligations. No recourse
for the payment of the principal of or any premium or interest on any Security,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company, contained in
this Indenture or in any supplemental indenture, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
Section 14.1. Provisions Binding On Company's Successors. All the covenants,
stipulations, promises and agreements made by the Company in this Indenture
shall bind its successors and assigns whether so expressed or not.
Section 14.2. Official Acts By Successor Corporation. Any act or proceeding by
any provision of this Indenture authorized or required to be done or performed
by any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the like board, committee or officer of
any corporation that shall at the time be the lawful successor of the Company.
Section 14.3. Notices.
(a) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the
Securityholders on the Company may be given or served by being deposited postage
prepaid in a post office letter box addressed (until another address is filed by
the Company with the Trustee) at the principal executive offices of the Company,
to the attention of the Secretary. Any notice, direction, request or demand by
any Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the corporate trust office of the Trustee, Attention: Vice President,
Corporate Trust Department.
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(b) The Company shall provide any notices required under this Indenture
by publication, but only to the extent that such publication is required by the
TIA, the rules and regulations of the Commission or any securities exchange upon
which any series of Securities is listed.
Section 14.4. Governing Law. This Indenture and each Security shall be deemed to
be a contract made under the laws of the State of Minnesota, and for all
purposes shall be construed in accordance with the laws of said State.
Section 14.5. Evidence Of Compliance With Conditions Precedent.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificates delivered pursuant
to Section 5.5 hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel delivered under the
Indenture may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such person knows, or in the
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exercise of reasonable care should know, that the certificate or opinion of
representations with respect to such matters are erroneous. Any opinion of
counsel delivered hereunder may contain standard exceptions and qualifications
satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an independent
public accountant or firm of accountants, unless such officer or counsel, as the
case may be, knows that the certificate or opinions or representations with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public accountants filed with
the Trustee shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 14.6. Business Days. Unless otherwise provided pursuant to Section
2.5(c) hereof, in any case where the date of maturity of the principal of or any
premium or interest on any Security or the date fixed for redemption of any
Security is not a Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and affect as if made on the date of maturity
or the date fixed for redemption, and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment Date
or the date on which the principal of the Security is required to be paid.
Section 14.7. Trust Indenture Act To Control. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the TIA, such required
provision of the TIA shall govern.
Section 14.8. Table Of Contents, Headings, Etc. The table of contents and the
titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 14.9. Execution In Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 14.10. Manner Of Mailing Notice To Securityholders. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or the Company to or on the Holders of
Securities, as the case may be, shall be given or served by first-class mail,
postage prepaid, addressed to the Holders of such Securities at their last
addresses as the same appear on the register for the Securities referred to in
Section 2.6, and any such notice shall be deemed to be given or served by being
deposited in a post office letter box in
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the form and manner provided in this Section 14.10. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice to any Holder by mail, then such notification to
such Holder as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
Section 14.11. Approval By Trustee Of Expert Or Counsel. Wherever the Trustee is
required to approve an Expert or counsel who is to furnish evidence of
compliance with conditions precedent in this Indenture, such approval by the
Trustee shall be deemed to have been given upon the taking of any action by the
Trustee pursuant to and in accordance with the certificate or opinion so
furnished by such Expert or counsel.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this Indenture
to be signed and acknowledged by one of its Vice Presidents, and attested by
its Secretary, and Norwest Bank Minnesota, National Association has caused
this Indenture to be signed and acknowledged by one of its Vice Presidents,
and attested by one of its Vice Presidents, as of the day and year first
written above.
NORTHERN STATES POWER COMPANY
By
ATTEST: E.J. McIntyre, Vice President and
Chief Financial Officer
John P. Moore, Jr., Corporate Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By
ATTEST: ----------------------------
------------------------------
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Exhibit A
FORM OF GLOBAL SECURITY
REGISTERED REGISTERED
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME
OF THE DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES
REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK), TO THE TRUSTEE 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., 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
(Incorporated under the laws of the State of Minnesota)
DEBT SECURITY, SERIES
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of Minnesota
(the "Company"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Security has two or more Original
Issue Dates, interest shall, beginning on each such Original Issue Date,
begin to accrue for that part of the principal amount to which that
A-1
<PAGE>
Original Issue Date is applicable) set forth above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on the and in each year, commencing on the first
such Interest Payment Date succeeding the applicable Original Issue Date set
forth above, at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Global
Security is paid on the Maturity Date. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Security is
registered at the close of business on the Regular Record Date for such
interest, which shall be the or , as the case may be, next preceding
such Interest Payment Date; provided, that the first Interest Payment Date for
any part of this Security, the Original Issue Date of which is after a Regular
Record Date but prior to the applicable Interest Payment Date, shall be the
Interest Payment Date following the next succeeding Regular Record Date; and
provided, that interest payable on the Maturity Date set forth above or, if
applicable, upon redemption or acceleration, shall be payable to the Person to
whom principal shall be payable. Except as otherwise provided in the Indenture
(as defined below), any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid to the Person in whose name this Security is registered
at the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
Securityholders not more than fifteen days or fewer than ten days prior to such
Special Record Date. On or before 10:00 a.m., New York City time, or such other
time as shall be agreed upon between the Trustee and the Depository, of the day
on which such payment of interest is due on this Global Security (other than
maturity), the Trustee shall pay to the Depository such interest in same day
funds. On or before 10:00 a.m., New York City time, or such other time as shall
be agreed upon between the Trustee and the Depository, of the day on which
principal, interest payable at maturity and premium, if any, is due on this
Global Security, the Trustee shall deposit with the Depository the amount equal
to the principal, interest payable at maturity and premium, if any, by wire
transfer into the account specified by the Depository. As a condition to the
payment, on the Maturity Date or upon redemption or acceleration, of any part
of the principal and applicable premium of this Global Security, the Depository
shall surrender, or cause to be surrendered, this Global Security to the
Trustee, whereupon a new Global Security shall be issued to the Depository.
This Global Security is a global security in respect of a duly authorized
issue of Debt Securities, Series (the "Securities of this Series" which term
includes any Global Securities representing such Securities) of the Company
issued and to be issued under an Indenture dated as of ________ __, 199_
between the Company and Norwest Bank Minnesota, National Association, as
trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture) and indentures supplemental thereto (collectively, the
"Indenture"). Under the Indenture, one or more series of Securities may be
issued and, as used herein, the term "Securities" refers to the Securities of
this Series and any other outstanding series of Securities. Reference is hereby
made for a more complete statement of the respective rights, limitations of
rights, duties and immunities under the Indenture of the Company, the Trustee
and the Securityholders and of the terms upon which the Securities are and are
to be authenticated and delivered. This Global Security has been issued in
respect of the series designated on the first page hereof, limited in aggregate
principal amount to $ .
Each Security of this Series shall be dated and issued as of the date of
its authentication by the Trustee and shall bear an Original Issue Date or
Dates. Each Security or Global Security
A-2
<PAGE>
issued upon transfer, exchange or substitution of such Security or Global
Security shall bear the Original Issue Date or Dates of such transferred,
exchanged or substituted Security or Global Security, as the case may be.
[As applicable, one of the following two sentences: This Global Security
may not be redeemed prior to , . This Global Security is not
redeemable prior to the Maturity Date set forth on the first page hereof.] [If
applicable: On or after , , this Global Security is redeemable
in whole or in part in increments of $1,000 (provided that any remaining
principal amount of this Global Security shall be at least $100,000) at the
option of the Company at the following redemption prices (expressed as a
percentage of the principal amount to be redeemed) plus accrued interest to
the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Global Security in part only, a new Global Security or Securities of like tenor
and series for the unredeemed portion hereof will be issued in the name of the
Securityholder hereof upon the surrender hereof.]
Interest payments for this Global Security shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or date on which the principal of this Global Security
is required to be paid is not a Business Day, then payment of principal,
premium or interest need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date or date on which the principal of this Global Security
is required to be paid and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment
Date or the date on which the principal of this Global Security is required
to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including
obligations to register the transfer or exchange of Securities, replace
stolen, lost or mutilated Securities, maintain paying agencies and hold
monies for payment in trust, all as set forth in the Indenture) if the
Company deposits with the Trustee money, U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance
with their terms will provide money, or a combination of money and U.S.
Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Securities on the dates such payments are due in accordance with the terms of
the Securities.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the
A-3
<PAGE>
Securityholders under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in principal amount
of the outstanding Securities. Any such consent or waiver by the Holder of this
Global Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Global Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu thereof
whether or not notation of such consent or waiver is made upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to such Securities, the Holders of not less
than a majority in principal amount of the outstanding Securities affected by
such Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the
Trustee shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of and any
premium or interest on this Security on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this Global
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Global Security at the times, places and rates
and the coin or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Security may be transferred only as permitted by the
legend hereto.
If at any time the Depository for this Global Security notifies the
Company that it is unwilling or unable to continue as Depository for this
Global Security or if at any time the Depository for this Global Security
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to this Global
Security. If a successor Depository for this Global Security is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company's election to issue this
Security in global form shall no longer be effective with respect to this
Global Security and the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual
Securities of this Series in exchange for this Global Security, will
authenticate and deliver individual Securities of this Series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of this Global Security.
The Company may at any time and in its sole discretion determine that
all Securities of this Series (but not less than all) issued or issuable in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event, the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Securities of this Series in exchange for such Global
Security, shall authenticate and deliver, individual Securities of this
Series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities in
exchange for such Global Security or Securities.
A-4
<PAGE>
Under certain circumstances specified in the Indenture, the Depository
may be required to surrender any two or more Global Securities which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Security in
principal amount equal to the aggregate principal amount of, and with all
terms identical to, the Global Securities surrendered thereto and that shall
indicate all Original Issue Dates and the principal amount applicable to each
such Original Issue Date.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer, this Global Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:_____________________________________
Dated:
Title:__________________________________
Attest:_________________________________
Title:__________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the
Securities of the series
herein designated, described
or provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By: ______________________
Authorized Officer
A-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian __________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of _____________________________________
survivorship and not as tenants in common State
Additional abbreviations may also be
used though not in the above list.
-------------------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________
the within security and all
rights thereunder, hereby
irrevocably constituting and
appointing ____________
attorney to transfer said
security on the books of the
Company, with full power of
substitution in the premises.
Dated: _______________________
______________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
A-6
<PAGE>
Exhibit B
FORM OF SECURITY
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
DEBT SECURITY, SERIES
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of Minnesota
(the "Company"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on the first such Interest Payment
Date succeeding the Original Issue Date set forth above, at the per annum
Interest Rate set forth above, until the principal hereof is paid or made
available for payment. No interest shall accrue on the Maturity Date, so long
as the principal amount of this Security is paid in full on the Maturity
Date. The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture (as defined
below), be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which
shall be the or , as the case may be, next preceding
such Interest Payment Date; provided that the first Interest Payment Date for
any Security, the Original Issue Date of which is after a Regular Record Date
but prior to the applicable Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Regular Record Date; and provided,
that interest payable on the Maturity Date set forth above or, if applicable,
upon redemption or acceleration, shall be payable to the Person to whom
principal shall be payable. Except as otherwise provided in the Indenture
(referred to on the reverse hereof), any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and shall be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice
whereof
B-1
<PAGE>
shall be given to Securityholders not more than fifteen days nor fewer than
ten days prior to such Special Record Date. Principal, applicable premium and
interest due at the maturity of this Security shall be payable in immediately
available funds when due upon presentation and surrender of this Security at
the corporate trust office of the Trustee or at the authorized office of any
paying agent in the Borough of Manhattan, the City and State of New York.
Interest on this Security (other than interest payable at maturity) shall be
paid by check in clearinghouse funds to the Holder as its name appears on the
register; provided, that if the Trustee receives a written request from any
Holder of Securities (as defined below), the aggregate principal amount of
all of which having the same Interest Payment Date as this Security equals or
exceeds $10,000,000, on or prior to the applicable Regular Record Date,
interest on the Security shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such
Holder designated by such Holder in its request if such account is maintained
with the Trustee or any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:_____________________________________
Dated:
Title:__________________________________
Attest:_________________________________
Title:__________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the
Securities of the series
herein designated, described
or provided for in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:___________________________
Authorized Officer
B-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
NORTHERN STATES POWER COMPANY
DEBT SECURITIES SERIES
This Security is one of a duly authorized issue of Senior
Securities, Series (the "Securities of this Series") of the Company issued
and to be issued under an Indenture dated as of ________ __, 199_, between
the Company and Norwest Bank Minnesota, National Association, as trustee
(herein called the "Trustee", which term includes any successor Trustee under
the Indenture) and indentures supplemental thereto (collectively, the
"Indenture"). Under the Indenture, one or more series of Securities may be
issued and, as used herein, the term "Securities" refers to the Securities of
this Series and any other outstanding series of Securities. Reference is
hereby made for a more complete statement of the respective rights,
limitations of rights, duties and immunities under the Indenture of the
Company, the Trustee and the Security holders and of the terms upon which the
Securities are and are to be authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate
principal amount to $___________.
[As applicable, one of the following two sentences: This Security may
not be redeemed prior to , . This Security is not redeemable prior
to the Maturity Date set forth on the face hereof.] [If applicable: On or
after , , this Security is redeemable in whole or in part in
increments of $1,000 (provided that any remaining principal amount of this
Security shall be at least $1,000) at the option of the Company at the
following redemption prices (expressed as a percentage of the principal amount
to be redeemed) plus accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities of this Series of like tenor
for the unredeemed portion hereof will be issued in the name of the
Securityholder hereof upon the surrender hereof.
Interest payments for this Security shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. In any case where any Interest
Payment Date or the date on which the principal of this Security is required to
be paid is not a Business Day, then payment of principal, premium or interest
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date or
the date on which the principal of this Security is required to be paid, and, in
the case of timely payment thereof, no interest shall accrue for the period from
and after such Interest Payment Date or the date on which the principal of this
Security is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including obligations
to register the transfer or exchange of Securities, replace
B-3
<PAGE>
stolen, lost or mutilated Securities, maintain paying agencies and hold monies
for payment in trust, all as set forth in the Indenture) if the Company deposits
with the Trustee money, U.S. Government Obligations which through the payment of
interest thereon and principal thereof in accordance with their terms will
provide money, or a combination of money and U.S. Government Obligations, in any
event in an amount sufficient, without reinvestment, to pay all the principal of
and any premium and interest on the Securities on the dates such payments are
due in accordance with the terms of the Securities.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Securityholders under the Indenture at any time
by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the outstanding Securities. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor in lieu thereof whether or not notation of such consent or waiver is
made upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to such Securities, the Holders of not less
than a majority in principal amount of the outstanding Securities affected by
such Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the
Trustee shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of and any
premium or interest on this Security on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium
and interest on this Security at the times, places and rates and the coin or
currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
register. Upon surrender of this Security for registration or transfer at the
corporate trust office of the Trustee or such other office or agency as may
be designated by the Company in the Borough of Manhattan, the City and State
of New York, endorsed by or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security registrar, duly executed
by the Holder hereof or the attorney in fact of such Holder duly authorized
in writing, one or more new Securities of this Series of like tenor and of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
The Securities of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and
B-4
<PAGE>
subject to certain limitations therein set forth, Securities of this Series are
exchangeable for a like aggregate principal amount of Securities of this Series
of like tenor and of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner thereof for
all purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian ____________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as tenants
in common ______________________________________
State
Additional abbreviations may also be used
though not in the above list.
_________________
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please print or typewrite name and address
including postal zip code of assignee
_______________________________
the within security and all
rights thereunder, hereby
irrevocably constituting and
appointing _______________
attorney to transfer said
security on the books of the
Company, with full power of
substitution in the premises.
Dated: _______________________
_____________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within instrument in every
particular, without alteration or enlargement
or any change whatever.
B-6
<PAGE>
Exhibit 5.01
[NSP LETTERHEAD]
November 20, 1998
Securities and Exchange Commission
450 Fifth Street NW
Washington, D.C. 20549
Re: $400,000,000 principal amount of First Mortgage Bonds,
Senior Notes and Debt Securities 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
$400,000,000 principal amount of First Mortgage Bonds, the New Bonds, Senior
Notes and Debt Securities (collectively, the "Securities"). 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 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 Securities.
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
Securities; (c) the Supplemental Indenture relating to the
Securities, has been duly authorized, executed, delivered,
filed and recorded as required by law; and (d) the
Securities have been duly authorized, executed,
authenticated, and delivered and the
<PAGE>
November 20, 1998
Page 2
consideration for the Securities has been received by the
Company, all in the manner contemplated by the said
Registration Statement, the Securities will be legally
issued and binding obligations of the Company and, with
respect to the New Bonds, will be 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
Vice President and General Counsel
<PAGE>
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
9/30/98 1997 1996 1995 1994 1993
--------- ---- ---- ---- ---- ----
(Thousands of dollars)
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations before
accounting change $259,227 $237,320 $274,539 $275,795 $243,475 $211,740
Add
Taxes based on income (1)
Federal income taxes 106,881 105,733 153,515 142,492 112,611 99,952
State income taxes 27,225 23,008 40,635 34,988 35,746 28,076
Deferred income taxes--net (13,581) (5,902) (30,561) (11,076) (6,100) 12,256
Tax credits--net (32,583) (26,365) (17,395) (14,409) (13,049) (9,544)
Foreign income taxes (2,050) 236 616 233 219
Fixed charges 184,204 169,377 141,961 133,328 115,083 113,562
Deduct
Undistributed equity in earnings of
unconsolidated affiliates (2) 35,127 5,364 25,976 41,870 23,588 1,142
--------- -------- -------- -------- -------- --------
Earnings $494,196 $498,043 $537,334 $519,481 $464,397 $454,900
--------- -------- -------- -------- -------- --------
--------- -------- -------- -------- -------- --------
Fixed charges:
Interest charges, excluding AFC--debt,
per statement of income $168,454 154,940 141,961 133,328 115,083 113,562
Distributions on redeemable preferred
securities of subsidiary trust 15,750 14,437 -- -- -- --
--------- -------- -------- -------- -------- --------
Total fixed charges $184,204 $169,377 $141,961 $133,328 $115,083 $113,562
--------- -------- -------- -------- -------- --------
--------- -------- -------- -------- -------- --------
Ratio of earnings to fixed charges 2.7 2.9 3.8 3.9 4.0 4.0
--------- -------- -------- -------- -------- --------
--------- -------- -------- -------- -------- --------
</TABLE>
- ---------------
(1) Includes local taxes included in Other Income (Expense).
(2) Includes losses of unconsolidated affiliates accounted
for under the equity method.
<PAGE>
Exhibit 23.01
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
February 2, 1998 appearing on Page 50 of Northern States Power Company's Annual
Report on Form 10-K for the year ended December 31, 1997. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
November 20, 1998
<PAGE>
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.
/s/
------------------------
Gary R. Johnson
Vice President and
General Counsel
Minneapolis, Minnesota
November 20, 1998
<PAGE>
Exhibit 24.01
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 $400 million principal amount of
secured or unsecured long-term debt securities of the Company, and one or more
amendments (including Post-Effective Amendments) to said Registration Statement;
and
WHEREAS, each of the undersigned holds the office or offices in the
Company herein below set opposite his/her name, respectively.
NOW, THEREFORE, each of the undersigned hereby constitutes and
appoints GARY R. JOHNSON, EDWARD J. MCINTYRE and JOHN P. MOORE, JR., 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 $400 million principal amount of secured or
unsecured long-term debt securities, and hereby ratifies and confirms all that
said attorney may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands the
24th day of June, 1998.
/s/ /s/
- ------------------------------ -----------------------------------
James J. Howard, Principal Richard M. Kovacevich, Director
Executive Officer & Director
<PAGE>
/s/ /s/
- ------------------------------ -----------------------------------
H. Lyman Bretting, Director Douglas W. Leatherdale, Director
/s/ /s/
- ------------------------------ -----------------------------------
David A. Christensen, Director Margaret R. Preska, Director
/s/ /s/
- ------------------------------ -----------------------------------
W. John Driscoll, Director A. Patricia Sampson, Director
/s/ /s/
- ------------------------------ -----------------------------------
Giannantonio Ferrari, Director Roger D. Sandeen, Principal
Accounting Officer
/s/
- ------------------------------
Edward J. McIntryre, Principal
Financial Officer
STATE OF MINNESOTA)
) ss.
COUNTY OF WASHINGTON)
On this 24th day of June, 1998, before me, John P. Moore, Jr. a Notary
Public in and for said County and State, personally appeared each of the
above-named directors and officers of Northern States Power Company, a Minnesota
corporation, and known to me to be the persons whose names are subscribed to the
foregoing instrument, and each person acknowledged to me that he or she executed
the same as his or her own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed THE
official seal on the date above set forth.
[Notary Seal]
/s/
- ------------------------------
John P. Moore, Jr.
<PAGE>
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 Potter, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2531 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
NORTHERN STATES POWER COMPANY
(Name of obligor)
Minnesota 41-0448030
(State of Incorporation) (I.R.S. Employer Identification No.)
414 Nicollet Mall
Minneapolis, Minnesota 55401
(Address of principal executive offices)
First Mortgage Bonds, Series due ______
(Title of indenture securities)
<PAGE>
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.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation,
File No. 333-20711, and is incorporated herein by reference.
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)
1
<PAGE>
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 12th day of November, 1998.
HARRIS TRUST AND SAVINGS BANK
By: /s/ C. Potter
--------------------------------
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: /s/ C. Potter
--------------------------------
C. Potter
Assistant Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1998, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO] HARRIS BANK
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, 1998, 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
ASSETS OF DOLLARS
<S> <C> <C>
CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS:
NON-INTEREST BEARING BALANCES AND CURRENCY AND COIN ................. $ 1,417,965
INTEREST BEARING BALANCES ........................................... $ 303,574
SECURITIES:
a. HELD-TO-MATURITY SECURITIES ................................................... $ 0
b. AVAILABLE-FOR-SALE SECURITIES ................................................. $ 4,490,777
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL ............ $ 263,100
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED INCOME ............................ $ 9,238,306
LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES .......................... $ 103,410
-----------
LOANS AND LEASES, NET OF UNEARNED INCOME, ALLOWANCE, AND RESERVE
(ITEM 4.a MINUS 4.b) ................................................ $ 9,134,896
ASSETS HELD IN TRADING ACCOUNTS ................................................... $ 192,782
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED LEASES) .......................... $ 230,242
OTHER REAL ESTATE OWNED ........................................................... $ 244
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED COMPANIES ............... $ 23
CUSTOMER'S LIABILITY TO THIS BANK ON ACCEPTANCES OUTSTANDING ...................... $ 39,065
INTANGIBLE ASSETS ................................................................. $ 262,703
OTHER ASSETS ...................................................................... $ 1,090,011
-----------
TOTAL ASSETS $17,425,382
-----------
-----------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
DEPOSITS:
IN DOMESTIC OFFICES .................................................................... $ 9,411,411
NON-INTEREST BEARING .......................................................... $ 3,093,738
INTEREST BEARING .............................................................. $ 6,317,673
IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBF'S ......................... $ 1,501,440
NON-INTEREST BEARING .......................................................... $ 33,412
INTEREST BEARING .............................................................. $ 1,468,028
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 & SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE .................... $ 3,465,000
TRADING LIABILITIES 83,843
OTHER BORROWED MONEY:
a. WITH REMAINING MATURITY OF ONE YEAR OR LESS ............................................. $ 1,016,061
b. WITH REMAINING MATURITY OF MORE THAN ONE YEAR ........................................... $ 0
BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND OUTSTANDING .................................... $ 39,065
SUBORDINATED NOTES AND DEBENTURES ........................................................... $ 225,000
OTHER LIABILITIES ........................................................................... $ 408,338
-----------
TOTAL LIABILITIES $16,150,158
-----------
-----------
EQUITY CAPITAL
COMMON STOCK ................................................................................ $ 100,000
SURPLUS ..................................................................................... $ 601,594
a. UNDIVIDED PROFITS AND CAPITAL RESERVES .................................................. $ 562,502
b. NET UNREALIZED HOLDING GAINS (LOSSES) ON AVAILABLE-FOR-SALE SECURITIES................... $ 11,128
-----------
TOTAL EQUITY CAPITAL $ 1,275,224
-----------
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL ......................... $17,245,382
-----------
-----------
</TABLE>
I, Pamela Piarowski, 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.
PAMELA PIAROWSKI
7/30/98
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.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
4
<PAGE>
Exhibit 25.02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
NORTHERN STATES POWER COMPANY
(Exact name of obligor as specified in its charter)
MINNESOTA 41-0448030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
414 NICOLLET MALL
MINNEAPOLIS, MN 55401
(Address of principal executive offices) (Zip code)
-----------------------------
SENIOR NOTES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Item 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.
Comptroller of the Currency
Treasury Department
Washington, D.C.
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.
The trustee is authorized to exercise corporate trust
powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor
is not in default as provided under Item 13.
Item 15. FOREIGN TRUSTEE. Not applicable.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1 the
exhibits attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28,
1872, by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of
the Currency dated January 2, 1934, approving the
consolidation of The Northwestern National Bank
of Minneapolis and The Minnesota Loan and Trust
Company of Minneapolis, with the surviving entity
being titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated January 12,
1943, as to change of corporate title of
Northwestern National Bank and Trust Company of
Minneapolis to Northwestern National Bank of
Minneapolis.*
<PAGE>
d. A copy of the letter dated May 12, 1983 from
the Regional Counsel, Comptroller of the
Currency, acknowledging receipt of notice of
name change effective May 1, 1983 from
Northwestern National Bank of Minneapolis to
Norwest Bank Minneapolis, National Association.*
e. A copy of the letter dated January 4, 1988 from
the Administrator of National Banks for the
Comptroller of the Currency certifying approval
of consolidation and merger effective January 1,
1988 of Norwest Bank Minneapolis, National
Association with various other banks under the
title of "Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the
Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with
registration statement number 333-62999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 16th day of November 1998.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/
------------------------
Curtis D. Schwegman
Assistant Vice President
<PAGE>
EXHIBIT 6
November 16, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/
------------------------
Curtis D. Schwegman
Assistant Vice President
<PAGE>
Exhibit 25.03
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
-----------------------------
NORTHERN STATES POWER COMPANY
(Exact name of obligor as specified in its charter)
MINNESOTA 41-0448030
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
414 NICOLLET MALL
MINNEAPOLIS, MN 55401
(Address of principal executive offices) (Zip code)
-----------------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Item 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.
Comptroller of the Currency
Treasury Department
Washington, D.C.
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.
The trustee is authorized to exercise corporate trust
powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. FOREIGN TRUSTEE. Not applicable.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1
the exhibits attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872, by
the Comptroller of the Currency to The Northwestern
National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of the
Currency dated January 2, 1934, approving the
consolidation of The Northwestern National Bank of
Minneapolis and The Minnesota Loan and Trust Company
of Minneapolis, with the surviving entity being titled
Northwestern National Bank and Trust Company of
Minneapolis.*
c. A copy of the certificate of the Acting Comptroller of
the Currency dated January 12, 1943, as to change of
corporate title of Northwestern National Bank and Trust
Company of Minneapolis to Northwestern National Bank of
Minneapolis.*
<PAGE>
d. A copy of the letter dated May 12, 1983 from the
Regional Counsel, Comptroller of the Currency,
acknowledging receipt of notice of name change
effective May 1, 1983 from Northwestern National Bank
of Minneapolis to Norwest Bank Minneapolis, National
Association.*
e. A copy of the letter dated January 4, 1988 from the
Administrator of National Banks for the Comptroller of
the Currency certifying approval of consolidation and
merger effective January 1, 1988 of Norwest Bank
Minneapolis, National Association with various other
banks under the title of "Norwest Bank Minnesota,
National Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the
Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with registration
statement number 333-62999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 16th day of November 1998.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/
----------------------------
Curtis D. Schwegman
Assistant Vice President
<PAGE>
EXHIBIT 6
November 16, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/
---------------------------
Curtis D. Schwegman
Assistant Vice President
