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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) MARCH 11, 1998
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NORTHERN STATES POWER COMPANY
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(Exact name of registrant as specified in its charter)
MINNESOTA
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(State or other jurisdiction of incorporation)
1-3034 41-0448030
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(Commission File Number) (IRS Employer Identification No.)
414 NICOLLET MALL, MPLS, MN 55401
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 612-330-5500
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(Former name of former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On March 11, 1998, Northern States Power Company, a Minnesota corporation
(the "Company") entered into an Underwriting Agreement and filed with the
Securities and Exchange Commission a prospectus supplement relating to
$150,000,000 in aggregate principal amount of the Company's First Mortgage
Bonds, Series due March 1, 2028 and entered into an Underwriting Agreement
and filed with the Securities and Exchange Commission a prospectus supplement
relating to $100,000,000 in aggregate principal amount of the Company's First
Mortgage Bonds, Series due March 1, 2003.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
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Exhibit No. Description
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<C> <S>
1.01 Underwriting Agreement, dated March 11, 1998 between Northern
States Power Company and Salomon Brothers, Inc., ABN Amro,
BancAmerica, Bear Stearns & Co. Inc., Chase Securities Inc., and
Nationsbanc relating to $100,000,000 First Mortgage Bonds, Series
due March 1, 2003.
1.02 Underwriting Agreement dated March 11, 1998 between Northern
States Power Company and Salomon Brothers, Inc., ABN Amro,
BancAmerica, Bear Stearns & Co. Inc., Chase Securities Inc., and
Nationsbanc relating to $150,000,000 First Mortgage Bonds, Series
due March 1, 2028.
4.01 Supplemental Trust Indenture dated March 1, 1998 between Northern
States Power Company and Harris Trust and Savings Bank as
Trustee, creating $150,000,000 principal amount First Mortgage
Bonds, Series due March 1, 2028 and $100,000,000 principal amount
First Mortgage Bonds, Series due March 1, 2003.
12.01 Computation of ratio of earnings to fixed charges.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Northern States Power Company
(a Minnesota Corporation)
By /s/ Edward J. McIntyre
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Edward J. McIntyre
Vice President and Chief Financial Officer
Dated: March 13, 1998
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EXHIBIT INDEX
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Method of Exhibit
Filing No. Description
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<C> <C> <S>
DT 1.01 Underwriting Agreement, dated March 11, 1998 between
Northern States Power Company and Salomon Brothers,
Inc., ABN Amro, BancAmerica, Bear Stearns & Co. Inc., Chase
Securities Inc., and Nationsbanc relating to $100,000,000 First
Mortgage Bonds, Series due March 1, 2003.
DT 1.02 Underwriting Agreement dated March 11, 1998 between
Northern States Power Company and Salomon Brothers,
Inc., ABN Amro, BancAmerica, Bear Stearns & Co. Inc., Chase
Securities Inc., and Nationsbanc relating to $150,000,000 First
Mortgage Bonds, Series due March 1, 2028.
DT 4.01 Supplemental Trust Indenture dated March 1, 1998 between
Northern States Power Company and Harris Trust and
Savings Bank as Trustee, creating $150,000,000 principal
amount First Mortgage Bonds, Series due March 1, 2028 and
$100,000,000 principal amount First Mortgage Bonds, Series
due March 1, 2003.
DT 12.01 Computation of ratio of earnings to fixed charges.
</TABLE>
DT = Filed electronically with direct transmission of this Form 8-K.
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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.
Concurrently with the offering of the Bonds, the Company proposes to issue
and sell $150,000,000 of its 6 1/2% First Mortgage Bonds, Series due March 1,
2028 (the "Additional Bonds"). The Additional Bonds also will be issued under
the Indenture. The sale of the Bonds and the Additional Bonds are not contingent
upon each other.
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 and the Additional Bonds, which registration statement
has become effective. Such registration statement and prospectus may have
been amended or supplemented from time to time prior to the date of this
Agreement (which date is set forth in Schedule I hereto). Any such amendment
or supplement was filed with the Commission and any such amendment has
become effective. The Company will file with the Commission a prospectus
supplement (the "Prospectus Supplement") relating to the Bonds pursuant to
Rule 424 and/or Rule 434 under the Act. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on or
prior to the date of this Agreement have been delivered to you and copies of
the Prospectus Supplement will be delivered to you promptly after it is
filed with the Commission. Such registration statement, as amended prior to
the date of this Agreement, and such prospectus, as amended and supplemented
prior to the date of this Agreement and as supplemented by the Prospectus
Supplement, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act
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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 Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B)
the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP and Price Waterhouse LLP which audited certain
of the financial statements incorporated by reference in the Registration
Statement, are each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the
Registration Statement or Prospectus fairly present the financial position
of the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and changes in financial position for
the periods specified, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the Prospectus Supplement.
(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
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not required by the nature of its business to be licensed or qualified as a
foreign corporation in any other state or jurisdiction; and, except as set
forth in the Prospectus Supplement, the Company has all material licenses
and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
Supplement, neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are material to
the Company and its subsidiaries, and there has not been any material change
in the capital stock or long-term debt of the Company or any of its
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
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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 the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or discharge of which
adequate provision has been made by the Company pursuant to the Indenture;
and any real property and buildings held under lease by the Company is held
by it under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and
its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in
compliance with all terms and conditions of any such permits, licenses or
approvals, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to the Representatives and each other Underwriter, and the Representatives
and each other Underwriter agree, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the
respective principal amounts of the Bonds set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Bonds shall be
made at the place, date and time specified in Schedule I hereto (or such other
place, date and time not later than eight full business days thereafter as the
Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company
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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 Close 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 make a filing with the Commission pursuant to Section 13
or 14 of the Exchange Act, which will correct such statement or omission or
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of
such period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)
under the Act), which will satisfy the provision of Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated by
reference), and will deliver to the Representatives conformed copies of the
Registration Statement,
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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 the
Additional Bonds and except under prior contractual commitments which have
been disclosed to you), without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and accountants,
all costs and expenses incident to the preparing, printing and filing of the
Registration Statement (including all exhibits thereto), the Prospectus
(including all documents incorporated by reference therein) and any amendments
thereof or supplements thereto, all costs and expenses (including fees and
expenses of counsel) incurred in connection with "blue sky" qualifications, the
determination of the legality of the Bonds for investment by institutional
investors and the rating of the Bonds, and all costs and expenses of the
printing and distribution of all documents in connection with this underwriting.
Except as provided in this Section 5 and Section 8 hereof, the Underwriters will
pay all their own costs and expenses, including the fees of their counsel and
any advertising expenses in connection with any offer they may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Bonds shall be subject, in the discretion of
the Representatives, to the accuracy of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
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(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 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
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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 Bonds on the terms and in the manner contemplated by the
Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded the Company's
debt securities or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement, and (ii) since the date of this Agreement, neither
the Company nor any of its subsidiaries shall have incurred any liabilities
or obligations, direct or contingent, or entered into any transactions, not
in the ordinary course of business, which are material to the Company and
its subsidiaries, and there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries otherwise than as
set forth or contemplated in the Prospectus Supplement, the effect of which,
in any such case described in clause (i) or (ii) is in the judgment of the
Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Bonds
on the terms and in the manner contemplated by the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in the opinion of
counsel for the Underwriters is material or omits to state a fact which in
the opinion of counsel for the Underwriters is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they
may reasonably request.
8
<PAGE>
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 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
9
<PAGE>
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 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
10
<PAGE>
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Bonds underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of 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.
11
<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.
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.
12
<PAGE>
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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By /s/
...........................................
Vice President
The foregoing Agreement is hereby
confirmed
and accepted as of the date first
above written.
SALOMON BROTHERS INC
By /s/
...................................
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF
THE SEVERAL UNDERWRITERS, IF ANY,
NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
13
<PAGE>
SCHEDULE I
Underwriting Agreement dated March 11, 1998
Registration Statement No. 33-63243
Representatives and Addresses: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Bonds:
Designation: 5 7/8% First Mortgage Bonds, Series due March 1, 2003
Principal Amount: $100,000,000
Supplemental Indenture dated as of March 1, 1998
Date of Maturity: March 1, 2003
Interest Rate: 5 7/8% per annum, payable March 1 and September 1 of each
year, commencing September 1, 1998
Purchase Price: 99.653% of the principal amount thereof, plus accrued
interest from
March 1, 1998 to the date of payment and delivery.
Public Offering Price: 99.848% of the principal amount thereof, plus
accrued interest from March 1, 1998 to the date of
payment and delivery.
Payment to be made in federal (same day) funds. _X_ Yes ___ No
Closing Date and Location: March 17, 1998
Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Delivery of Bonds: The Depository Trust Company
55 Water Street
19th Floor
New York, New York 10041
Office for Payment of Bonds: Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Checking of Bonds: The Depository Trust Company
55 Water Street
19th Floor
New York, New York 10041
14
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME AMOUNT
- -------------------------------------------------------------------------------------------------- --------------
<S> <C>
Salomon Brothers Inc.............................................................................. $ 17,500,000
ABN Amro.......................................................................................... 16,500,000
BancAmerica....................................................................................... 16,500,000
Bear Stearns & Co. Inc............................................................................ 16,500,000
Chase Securities Inc.............................................................................. 16,500,000
Nationsbanc....................................................................................... 16,500,000
--------------
Total..................................................................................... $ 100,000,000
--------------
--------------
</TABLE>
15
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
RE: $ PRINCIPAL AMOUNT OF FIRST MORTGAGE BONDS, SERIES DUE
, %
OF NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of $
principal amount of First Mortgage Bonds, Series due , % herein
called the "Bonds." In connection therewith I have participated in the
preparation of the proceedings for the issuance and sale of the Bonds including
the Underwriting Agreement dated , between you and the Company
relating to your purchase of the Bonds, herein called the "Agreement," and have
either participated in the preparation of or examined the Trust Indenture dated
February 1, 1937, and the Supplemental Trust Indentures thereto and the
Supplemental Trust Indenture dated as of , creating the Bonds,
all from the Company to Harris Trust and Savings Bank, as Trustee (which Trust
Indenture and Supplemental Trust Indentures are herein collectively called the
"Indenture"). I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Bonds. Whenever the terms
"Registration Statement" or "Prospectus" are used herein, they shall have the
respective meanings set forth in the Agreement. My examination has extended to
all statutes, records, instruments, and documents which I have deemed necessary
to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of the
State of Minnesota; has corporate power, right, and authority to do business
and to own property in the states of Minnesota, North Dakota, and South
Dakota in the manner and as set forth in the Prospectus; has corporate
power, right and authority to own securities of its subsidiaries; and has
corporate power, right, and authority to make the Indenture and issue and
sell the Bonds;
2. The authorized capital stock of the Company is as set forth in the
Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable;
3. Each Significant Subsidiary, as defined in the Agreement, of the
Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
pledge, lien, encumbrance, claim or equity;
4. The Agreement has been duly authorized, executed, and delivered by
the Company and is a valid and binding obligation of the Company, except to
the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate corporate
proceedings on the part of the Company, has been duly executed and delivered
and constitutes a legal, valid, and binding instrument enforceable in
accordance with its terms, except as the provisions of the United States
Bankruptcy Code may affect the validity of the lien thereof with respect to
proceeds, products, rents,
1
<PAGE>
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 captions "Description of New Bonds" and "Supplemental Description
of Offered Bonds" in the Prospectus, insofar as they purport to summarize
provisions of documents specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3; the Bonds are in
due legal form, constitute legal, valid, and binding obligations of the
Company, and (subject to the qualifications expressed in paragraph 5 above
with respect to the validity and enforceability of certain of the provisions
of the Indenture) and enforceable in accordance with their terms;
7. The consummation of the transactions contemplated in the Agreement
and the fulfillment of the terms thereof and compliance by the Company with
all the terms and provisions of the Indenture will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument known to
me to which the Company is a party or by which it is bound, or the Restated
Articles of Incorporation, as amended, or by-laws of the Company or, to the
best of my knowledge, any order, rule or regulation applicable to the
Company of any court or of any Federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over
the Company or its property;
8. The Registration Statement has become effective under the Act. The
Prospectus Supplement (as defined in the Agreement) has been filed pursuant
to Rule 424(b) under the Act, and no proceedings for a stop order have been
instituted or to the knowledge of such counsel are pending or threatened
under Section 8(d) of the Act; the Minnesota Public Utilities Commission has
issued its order approving the Company's capital structure which order
authorizes the issuance of the Bonds; the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"); and no further approval of, authorization, consent, certificate or
order of any governmental body, federal, state or other, is required in
connection with the issuance and sale of the Bonds by the Company to you as
provided in the Agreement, except as may be required by state securities
laws;
9. At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no
opinion is being expressed) complied as to form in all material respects
with the requirements of the Act, the rules and regulations thereunder, the
Trust Indenture Act and the rules and regulations thereunder;
10. I do not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required nor of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
11. The Indenture is in proper form, conforming to the laws of the
States of Minnesota, North Dakota, and South Dakota, to give and create the
lien which it purports to create and has been and now is duly and properly
recorded or filed in all places necessary to effectuate the lien of the
Indenture;
12. The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to: (a) taxes and assessments not yet
2
<PAGE>
delinquent; (b) the lien of the Indenture; (c) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and similar
encumbrances which do not affect the Company's use of such property in the
usual course of its business, certain minor defects in titles which are not
material, defects in titles to certain properties which are not essential to
the Company's business; and mechanics' lien claims being contested or not of
record or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the Indenture;
13. The Bonds are secured by and entitled to the benefits of the
Indenture equally and ratably, except as to sinking fund provisions, with
all other bonds duly issued and outstanding under the Indenture by a valid
and direct first mortgage lien of the Indenture on all of the real and fixed
properties, leasehold rights, franchises, and permits now owned by the
Company, subject only to the items set forth in the preceding paragraph 12
of this opinion;
14. The Bonds also are secured equally and ratably, except as to sinking
fund provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien (subject to permitted
liens as defined in the Indenture) on all real and fixed property hereafter
acquired by the Company in conformity with the terms of the Indenture,
except as the United States Bankruptcy Code may affect the validity of the
lien of such Indenture on property acquired after the commencement of a case
under such Act, except as to the prior lien of the Trustee under the
Indenture in certain events specified therein, and except as otherwise
provided in the Indenture in the case of consolidation, merger, or transfer
of all the mortgaged and pledged property as an entirety;
15. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the
customers in the jurisdictions where it provided electric and gas service,
except in certain instances that are not material to the Company; and
16. All statements contained in the Registration Statement and
Prospectus under the caption "Description of New Bonds" purporting to set
forth the opinion of counsel or purporting to be based upon the opinion of
counsel correctly set forth my opinion on said respective matters.
These opinions do not cover titles to easements for water flowage purposes
or rights of way for electric and gas transmission and distribution facilities,
steam mains, and telephone lines. However, the Company has the power of eminent
domain in the states in which it operates.
In the course of my participation in the preparation of the Registration
Statement and Prospectus I made investigations as to the accuracy of certain of
the statements of fact contained therein, I discussed other matters with
officers, employees, and representatives of the Company, and I examined various
corporate records and data. While I do not pass upon or assume responsibility
for, and shall not be deemed to have independently verified, the accuracy and
completeness of the statements contained in the Registration Statement or
Prospectus (except as to matters set forth in paragraphs 9 and 16 above) nothing
has come to my attention that would lead me to believe that the Registration
Statement at the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus as of the date of the Agreement or at the date hereof contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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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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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.
Concurrently with the offering of the Bonds, the Company proposes to issue
and sell $100,000,000 of its 5 7/8% First Mortgage Bonds, Series due March 1,
2003 (the "Additional Bonds"). The Additional Bonds also will be issued under
the Indenture. The sale of the Bonds and the Additional Bonds are not contingent
upon each other.
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 and the Additional Bonds, which registration statement
has become effective. Such registration statement and prospectus may have
been amended or supplemented from time to time prior to the date of this
Agreement (which date is set forth in Schedule I hereto). Any such amendment
or supplement was filed with the Commission and any such amendment has
become effective. The Company will file with the Commission a prospectus
supplement (the "Prospectus Supplement") relating to the Bonds pursuant to
Rule 424 and/or Rule 434 under the Act. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on or
prior to the date of this Agreement have been delivered to you and copies of
the Prospectus Supplement will be delivered to you promptly after it is
filed with the Commission. Such registration statement, as amended prior to
the date of this Agreement, and such prospectus, as amended and supplemented
prior to the date of this Agreement and as supplemented by the Prospectus
Supplement, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act
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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 Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (B)
the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP and Price Waterhouse LLP which audited certain
of the financial statements incorporated by reference in the Registration
Statement, are each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the
Registration Statement or Prospectus fairly present the financial position
of the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and changes in financial position for
the periods specified, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the Prospectus Supplement.
(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
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not required by the nature of its business to be licensed or qualified as a
foreign corporation in any other state or jurisdiction; and, except as set
forth in the Prospectus Supplement, the Company has all material licenses
and approvals required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
Supplement, neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are material to
the Company and its subsidiaries, and there has not been any material change
in the capital stock or long-term debt of the Company or any of its
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
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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 the Company's business; and mechanics' lien claims being
contested or not of record or for the satisfaction or discharge of which
adequate provision has been made by the Company pursuant to the Indenture;
and any real property and buildings held under lease by the Company is held
by it under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and
its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in
compliance with all terms and conditions of any such permits, licenses or
approvals, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to the Representatives and each other Underwriter, and the Representatives
and each other Underwriter agree, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the
respective principal amounts of the Bonds set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Bonds shall be
made at the place, date and time specified in Schedule I hereto (or such other
place, date and time not later than eight full business days thereafter as the
Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company
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<PAGE>
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 Close 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 make a filing with the Commission pursuant to Section 13
or 14 of the Exchange Act, which will correct such statement or omission or
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of
such period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)
under the Act), which will satisfy the provision of Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated by
reference), and will deliver to the Representatives conformed copies of the
Registration Statement,
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<PAGE>
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 the
Additional Bonds and except under prior contractual commitments which have
been disclosed to you), without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and accountants,
all costs and expenses incident to the preparing, printing and filing of the
Registration Statement (including all exhibits thereto), the Prospectus
(including all documents incorporated by reference therein) and any amendments
thereof or supplements thereto, all costs and expenses (including fees and
expenses of counsel) incurred in connection with "blue sky" qualifications, the
determination of the legality of the Bonds for investment by institutional
investors and the rating of the Bonds, and all costs and expenses of the
printing and distribution of all documents in connection with this underwriting.
Except as provided in this Section 5 and Section 8 hereof, the Underwriters will
pay all their own costs and expenses, including the fees of their counsel and
any advertising expenses in connection with any offer they may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Bonds shall be subject, in the discretion of
the Representatives, to the accuracy of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
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(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 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
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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 Bonds on the terms and in the manner contemplated by the
Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded the Company's
debt securities or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement, and (ii) since the date of this Agreement, neither
the Company nor any of its subsidiaries shall have incurred any liabilities
or obligations, direct or contingent, or entered into any transactions, not
in the ordinary course of business, which are material to the Company and
its subsidiaries, and there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries otherwise than as
set forth or contemplated in the Prospectus Supplement, the effect of which,
in any such case described in clause (i) or (ii) is in the judgment of the
Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Bonds
on the terms and in the manner contemplated by the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in the opinion of
counsel for the Underwriters is material or omits to state a fact which in
the opinion of counsel for the Underwriters is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they
may reasonably request.
8
<PAGE>
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 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
9
<PAGE>
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 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
10
<PAGE>
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Bonds underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of 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.
11
<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.
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.
12
<PAGE>
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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By /s/
...........................................
Vice President
The foregoing Agreement is hereby
confirmed
and accepted as of the date first
above written.
SALOMON BROTHERS INC
By /s/
...................................
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF
THE SEVERAL UNDERWRITERS, IF ANY,
NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
13
<PAGE>
SCHEDULE I
Underwriting Agreement dated March 11, 1998
Registration Statement No. 33-63243
Representatives and Addresses: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Bonds:
Designation: 6 1/2% First Mortgage Bonds, Series due March 1, 2028
Principal Amount: $150,000,000
Supplemental Indenture dated as of March 1, 1998
Date of Maturity: March 1, 2028
Interest Rate: 6 1/2% per annum, payable March 1 and September 1 of each
year, commencing September 1, 1998
Purchase Price: 98.185% of the principal amount thereof, plus accrued
interest from
March 1, 1998 to the date of payment and delivery.
Public Offering Price: 98.826% of the principal amount thereof, plus
accrued interest from March 1, 1998 to the date of
payment and delivery.
Payment to be made in federal (same day) funds. _X_ Yes ___ No
Closing Date and Location: March 17, 1998
Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Delivery of Bonds: The Depository Trust Company
55 Water Street
19th Floor
New York, New York 10041
Office for Payment of Bonds: Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Checking of Bonds: The Depository Trust Company
55 Water Street
19th Floor
New York, New York 10041
14
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME AMOUNT
- -------------------------------------------------------------------------------------------------- --------------
<S> <C>
Salomon Brothers Inc.............................................................................. $ 25,000,000
ABN Amro.......................................................................................... 25,000,000
BancAmerica....................................................................................... 25,000,000
Bear Stearns & Co. Inc............................................................................ 25,000,000
Chase Securities Inc.............................................................................. 25,000,000
Nationsbanc....................................................................................... 25,000,000
--------------
Total..................................................................................... $ 150,000,000
--------------
--------------
</TABLE>
15
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
RE: $ PRINCIPAL AMOUNT OF FIRST MORTGAGE BONDS, SERIES DUE
, %
OF NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Minnesota corporation, herein called
the "Company," with respect to the issue and sale by the Company of $
principal amount of First Mortgage Bonds, Series due , % herein
called the "Bonds." In connection therewith I have participated in the
preparation of the proceedings for the issuance and sale of the Bonds including
the Underwriting Agreement dated , between you and the Company
relating to your purchase of the Bonds, herein called the "Agreement," and have
either participated in the preparation of or examined the Trust Indenture dated
February 1, 1937, and the Supplemental Trust Indentures thereto and the
Supplemental Trust Indenture dated as of , creating the Bonds,
all from the Company to Harris Trust and Savings Bank, as Trustee (which Trust
Indenture and Supplemental Trust Indentures are herein collectively called the
"Indenture"). I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Bonds. Whenever the terms
"Registration Statement" or "Prospectus" are used herein, they shall have the
respective meanings set forth in the Agreement. My examination has extended to
all statutes, records, instruments, and documents which I have deemed necessary
to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of the
State of Minnesota; has corporate power, right, and authority to do business
and to own property in the states of Minnesota, North Dakota, and South
Dakota in the manner and as set forth in the Prospectus; has corporate
power, right and authority to own securities of its subsidiaries; and has
corporate power, right, and authority to make the Indenture and issue and
sell the Bonds;
2. The authorized capital stock of the Company is as set forth in the
Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable;
3. Each Significant Subsidiary, as defined in the Agreement, of the
Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
pledge, lien, encumbrance, claim or equity;
4. The Agreement has been duly authorized, executed, and delivered by
the Company and is a valid and binding obligation of the Company, except to
the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate corporate
proceedings on the part of the Company, has been duly executed and delivered
and constitutes a legal, valid, and binding instrument enforceable in
accordance with its terms, except as the provisions of the United States
Bankruptcy Code may affect the validity of the lien thereof with respect to
proceeds, products, rents,
1
<PAGE>
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 captions "Description of New Bonds" and "Supplemental Description
of Offered Bonds" in the Prospectus, insofar as they purport to summarize
provisions of documents specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3; the Bonds are in
due legal form, constitute legal, valid, and binding obligations of the
Company, and (subject to the qualifications expressed in paragraph 5 above
with respect to the validity and enforceability of certain of the provisions
of the Indenture) and enforceable in accordance with their terms;
7. The consummation of the transactions contemplated in the Agreement
and the fulfillment of the terms thereof and compliance by the Company with
all the terms and provisions of the Indenture will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument known to
me to which the Company is a party or by which it is bound, or the Restated
Articles of Incorporation, as amended, or by-laws of the Company or, to the
best of my knowledge, any order, rule or regulation applicable to the
Company of any court or of any Federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over
the Company or its property;
8. The Registration Statement has become effective under the Act. The
Prospectus Supplement (as defined in the Agreement) has been filed pursuant
to Rule 424(b) under the Act, and no proceedings for a stop order have been
instituted or to the knowledge of such counsel are pending or threatened
under Section 8(d) of the Act; the Minnesota Public Utilities Commission has
issued its order approving the Company's capital structure which order
authorizes the issuance of the Bonds; the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"); and no further approval of, authorization, consent, certificate or
order of any governmental body, federal, state or other, is required in
connection with the issuance and sale of the Bonds by the Company to you as
provided in the Agreement, except as may be required by state securities
laws;
9. At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no
opinion is being expressed) complied as to form in all material respects
with the requirements of the Act, the rules and regulations thereunder, the
Trust Indenture Act and the rules and regulations thereunder;
10. I do not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required nor of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
11. The Indenture is in proper form, conforming to the laws of the
States of Minnesota, North Dakota, and South Dakota, to give and create the
lien which it purports to create and has been and now is duly and properly
recorded or filed in all places necessary to effectuate the lien of the
Indenture;
12. The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to: (a) taxes and assessments not yet
2
<PAGE>
delinquent; (b) the lien of the Indenture; (c) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and similar
encumbrances which do not affect the Company's use of such property in the
usual course of its business, certain minor defects in titles which are not
material, defects in titles to certain properties which are not essential to
the Company's business; and mechanics' lien claims being contested or not of
record or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the Indenture;
13. The Bonds are secured by and entitled to the benefits of the
Indenture equally and ratably, except as to sinking fund provisions, with
all other bonds duly issued and outstanding under the Indenture by a valid
and direct first mortgage lien of the Indenture on all of the real and fixed
properties, leasehold rights, franchises, and permits now owned by the
Company, subject only to the items set forth in the preceding paragraph 12
of this opinion;
14. The Bonds also are secured equally and ratably, except as to sinking
fund provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien (subject to permitted
liens as defined in the Indenture) on all real and fixed property hereafter
acquired by the Company in conformity with the terms of the Indenture,
except as the United States Bankruptcy Code may affect the validity of the
lien of such Indenture on property acquired after the commencement of a case
under such Act, except as to the prior lien of the Trustee under the
Indenture in certain events specified therein, and except as otherwise
provided in the Indenture in the case of consolidation, merger, or transfer
of all the mortgaged and pledged property as an entirety;
15. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the
customers in the jurisdictions where it provided electric and gas service,
except in certain instances that are not material to the Company; and
16. All statements contained in the Registration Statement and
Prospectus under the caption "Description of New Bonds" purporting to set
forth the opinion of counsel or purporting to be based upon the opinion of
counsel correctly set forth my opinion on said respective matters.
These opinions do not cover titles to easements for water flowage purposes
or rights of way for electric and gas transmission and distribution facilities,
steam mains, and telephone lines. However, the Company has the power of eminent
domain in the states in which it operates.
In the course of my participation in the preparation of the Registration
Statement and Prospectus I made investigations as to the accuracy of certain of
the statements of fact contained therein, I discussed other matters with
officers, employees, and representatives of the Company, and I examined various
corporate records and data. While I do not pass upon or assume responsibility
for, and shall not be deemed to have independently verified, the accuracy and
completeness of the statements contained in the Registration Statement or
Prospectus (except as to matters set forth in paragraphs 9 and 16 above) nothing
has come to my attention that would lead me to believe that the Registration
Statement at the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus as of the date of the Agreement or at the date hereof contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
In giving my opinion under paragraph 12 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts which
would adversely affect the titles shown on the abstracts. In giving opinions as
to conformity to the laws of States other than Minnesota and as to the
franchises and titles to property of the Company, I have in certain instances
relied upon the opinion of other counsel employed or retained by the Company to
render opinions in respect thereto.
Respectfully submitted,
3
<PAGE>
By
----------------------------------------
Gary R. Johnson
Vice President and General Counsel
Northern States Power Company
4
<PAGE>
SUPPLEMENTAL TRUST INDENTURE
FROM
NORTHERN STATES POWER COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE
--------------
DATED MARCH 1, 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> <C>
Parties.................................................................................................... 1
Recitals................................................................................................... 1
Form of Bonds of Series 2028 Bonds and Series 2003 Bonds................................................... 2
Form of Trustee's Certificate.............................................................................. 5
Further Recitals........................................................................................... 5
ARTICLE I.
SPECIFIC SUBJECTION OF ADDITIONAL PROPERTY TO THE LIEN OF
THE ORIGINAL INDENTURE.
Section 1.01-- Grant of certain property, including personal property to comply with the Uniform
Commercial Code, subject to permitted liens and other exceptions contained in 1937
Indenture............................................................................ 5
ARTICLE II.
FORM AND EXECUTION OF SERIES 2028 BONDS AND SERIES 2003 BONDS.
Section 2.01-- Terms of Series 2028 Bonds........................................................... 6
Section 2.02-- Terms of Series 2003 Bonds........................................................... 8
Section 2.03-- Redemption of Series 2028 Bonds and Series 2003 Bonds................................ 9
Section 2.04-- Interchangeability of bonds.......................................................... 9
Section 2.05-- Charges for exchange or transfer of bonds............................................ 9
Section 2.06-- Execution of bonds................................................................... 9
Section 2.07-- Book-Entry System.................................................................... 10
ARTICLE III.
APPOINTMENT OF AUTHENTICATING AGENT.
Section 3.01-- Appointment of agent or agents....................................................... 12
Section 3.02--(a) Qualification of agents.............................................................. 12
(b) Continuation of agent upon merger or consolidation................................... 12
(c) Termination of successor agent....................................................... 12
(d) Compensation of agent................................................................ 12
Section 3.03-- Form of alternate certificate of authentication...................................... 13
Section 3.04-- Limit on location and number of agents............................................... 13
ARTICLE IV.
FINANCING STATEMENT TO COMPLY WITH THE
UNIFORM COMMERCIAL CODE.
Section 4.01-- Names and addresses of debtor and secured party...................................... 13
Section 4.02-- Property subject to lien............................................................. 13
Section 4.03-- Maturity dates and principal amounts of obligations secured.......................... 13
Section 4.04-- Financing Statement adopted for all First Mortgage Bonds listed in Section 4.03...... 14
</TABLE>
<PAGE>
ii
<TABLE>
<CAPTION>
PAGE
-----
<S> <C> <C>
Section 4.05-- Recording data for the 1937 Indenture and prior Supplemental Trust Indentures........ 14
Section 4.06-- Financing Statement covers additional series of First Mortgage Bonds................. 15
ARTICLE V.
AMENDMENTS TO INDENTURE.
Section 5.01-- Consent of holders of Bonds.......................................................... 15
ARTICLE VI.
MISCELLANEOUS.
Section 6.01-- Recitals of fact, except as stated, are statements of the Company.................... 15
Section 6.02-- Supplemental Trust Indenture to be construed as a part of the 1937 Indenture, as
supplemented......................................................................... 15
Section 6.03--(a) Trust Indenture Act to control....................................................... 16
(b) Severability of conditions contained in Supplemental Trust Indenture and bonds....... 16
Section 6.04-- Word "Indenture" as used herein includes in its meaning the 1937 Indenture and all
indentures supplemental thereto...................................................... 16
Section 6.05-- References to either party in Supplemental Trust Indenture include successors or
assigns.............................................................................. 16
Section 6.06--(a) Provision for execution in counterparts.............................................. 16
(b) Table of Contents and descriptive headings of Articles not to affect meaning......... 16
--------------
Schedule A................................................................................................. A-1
</TABLE>
<PAGE>
SUPPLEMENTAL TRUST INDENTURE, made as of the 1st day of March, 1998, by and
between NORTHERN STATES POWER COMPANY, a corporation duly organized and existing
under and by virtue of the laws of the State of Minnesota, having its principal
office in the City of Minneapolis in said State (the "Company"), party of the
first part, and HARRIS TRUST AND SAVINGS BANK, a corporation duly organized and
existing under and by virtue of the laws of the State of Illinois, having its
principal office in the City of Chicago in said State, as Trustee (the
"Trustee"), party of the second part;
WITNESSETH:
WHEREAS, the Company heretofore has executed and delivered to the Trustee
its Trust Indenture (the "1937 Indenture"), made as of February 1, 1937, whereby
the Company granted, bargained, sold, warranted, released, conveyed, assigned,
transferred, mortgaged, pledged, set over, and confirmed to the Trustee, and to
its respective successors in trust, all property, real, personal, and mixed then
owned or thereafter acquired or to be acquired by the Company (except as therein
excepted from the lien thereof) and subject to the rights reserved by the
Company in and by the provisions of the 1937 Indenture, to be held by said
Trustee in trust in accordance with provisions of the 1937 Indenture for the
equal pro rata benefit and security of all and every of the bonds issued
thereunder in accordance with the provisions thereof; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental Trust Indenture, made as of June 1, 1942, whereby the Company
conveyed, assigned, transferred, mortgaged, pledged, set over, and confirmed to
the Trustee, and its respective successors in said trust, additional property
acquired by it subsequent to the date of the 1937 Indenture; and
WHEREAS, the Company heretofore has executed and delivered to the Trustee
the following additional Supplemental Trust Indentures which, in addition to
conveying, assigning, transferring, mortgaging, pledging, setting over, and
confirming to the Trustee, and its respective successors in said trust,
additional property acquired by it subsequent to the preparation of the next
preceding Supplemental Trust Indenture and adding to the covenants, conditions,
and agreements of the 1937 Indenture certain additional covenants, conditions,
and agreements to be observed by the Company, created the following series of
First Mortgage Bonds:
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
February 1, 1944 Series due February 1, 1974 (retired)
October 1, 1945 Series due October 1, 1975 (retired)
July 1, 1948 Series due July 1, 1978 (retired)
August 1, 1949 Series due August 1, 1979 (retired)
June 1, 1952 Series due June 1, 1982 (retired)
October 1, 1954 Series due October 1, 1984 (retired)
September 1, 1956 Series due 1986 (retired)
August 1, 1957 Series due August 1, 1987 (redeemed)
July 1, 1958 Series due July 1, 1988 (retired)
December 1, 1960 Series due December 1, 1990 (retired)
August 1, 1961 Series due August 1, 1991 (retired)
June 1, 1962 Series due June 1, 1992 (retired)
September 1, 1963 Series due September 1, 1993 (retired)
August 1, 1966 Series due August 1, 1996 (redeemed)
June 1, 1967 Series due June 1, 1995 (redeemed)
October 1, 1967 Series due October 1, 1997 (redeemed)
May 1, 1968 Series due May 1, 1998 (redeemed)
October 1, 1969 Series due October 1, 1999 (redeemed)
February 1, 1971 Series due March 1, 2001 (redeemed)
May 1, 1971 Series due June 1, 2001 (redeemed)
February 1, 1972 Series due March 1, 2002
January 1, 1973 Series due February 1, 2003
January 1, 1974 Series due January 1, 2004 (redeemed)
September 1, 1974 Pollution Control Series A (redeemed)
April 1, 1975 Pollution Control Series B (redeemed)
May 1, 1975 Series due May 1, 2005 (redeemed)
March 1, 1976 Pollution Control Series C (retired)
June 1, 1981 Pollution Control Series D, E and F (redeemed)
December 1, 1981 Series due December 1, 2011 (redeemed)
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
DATE OF SUPPLEMENTAL
TRUST INDENTURE DESIGNATION OF SERIES
- ------------------------------ ----------------------------------------------------------
<S> <C>
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
</TABLE>
WHEREAS, the 1937 Indenture and all of the foregoing Supplemental Trust
Indentures are referred to herein collectively as the "Original Indenture;" and
WHEREAS, the Company heretofore has executed and delivered to the Trustee a
Supplemental and Restated Trust Indenture, dated May 1, 1988 (the "Restated
Indenture"), which, in addition to conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee, and its
respective successors in said trust, additional property acquired by it
subsequent to the preparation of the next preceding Supplemental Trust
Indenture, amended and restated the Original Indenture; and
WHEREAS, the Restated Indenture will not become effective and operative
until all bonds of each series issued under the Original Indenture prior to May
1, 1988 shall have been retired through payment or redemption (including those
bonds "deemed to be paid" within the meaning of that term as used in Article
XVII of the 1937 Indenture) or until, subject to certain exceptions, the holders
of the requisite principal amount of such bonds shall have consented to the
amendments contained in the Restated Indenture (such date being herein called
the "Effective Date"); and
WHEREAS, the Original Indenture and the Restated Indenture are referred to
herein collectively as the "Indenture"; and
WHEREAS, the Indenture provides that bonds may be issued thereunder in one
or more series, each series to have such distinctive designation as the Board of
Directors of the Company may select for such series; and
WHEREAS, the Company is desirous of providing for the creation of (a) a new
series of First Mortgage Bonds to be designated "First Mortgage Bonds, Series
due March 1, 2028" (the "Series 2028 Bonds") and (b) a new series of First
Mortgage Bonds to be designated "First Mortgage Bonds, Series due March 1, 2003"
(the "Series 2003 Bonds", and collectively with the Series 2028 Bonds, the
"Bonds"), the Bonds of each series to be issued as registered bonds without
coupons in denominations of a multiple of $1000, and the bonds of said series to
be substantially in the form and of the tenor following, to-wit:
(Form of Series 2028 Bonds and Series 2003 Bonds)
NORTHERN STATES POWER COMPANY
(Incorporated under the laws of the State of Minnesota)
First Mortgage Bond
Series due March 1,
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
<PAGE>
3
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 first day of March, [2028] [2003], and to pay interest hereon
from the date hereof at the rate of [six and one-half][five and seven-eighths]
percent per annum, in like money, until the Company's obligation with respect to
the payment of such principal sum shall be discharged; said interest being
payable at the option of the person entitled to such interest either at the
office of the Trustee, in Chicago, Illinois, or at the agency of the Company in
the Borough of Manhattan, City and State of New York, on the first day of March
and on the first day of September 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 March 1 or September 1 will be
paid to the person in whose name this bond was registered at the close of
business on the record date (the February 18 prior to such March 1 or the August
21 prior to such September 1 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 45 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.
<PAGE>
4
The Restated Indenture amends and restates the 1937 Indenture and the
Supplemental Indentures. The Restated Indenture will become effective and
operative (the "Effective Date") when all Bonds of each series issued under the
Indenture prior to May 1, 1988 shall have been retired through payment or
redemption (including those bonds "deemed to be paid" within the meaning of that
term as used in Article XVII of the 1937 Indenture) or until, subject to certain
exceptions, the holders of the requisite principal amount of such bonds shall
have consented to the amendments contained in the Restated Indenture. Holders of
the bonds of this series and of each subsequent series of bonds issued under the
Indenture likewise will be bound by the amendments contained in the Restated
Indenture when they become effective and operative. Reference is made to the
Restated Indenture for a complete description of the amendments contained
therein to the 1937 Indenture and to the Supplemental Indentures.
The Company and the Trustee may deem and treat the person in whose name this
bond is registered as the absolute owner hereof for the purpose of receiving
payment and for all other purposes and shall not be affected by any notice to
the contrary.
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 March 1, [2028] [2003], 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.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this bond to be
executed in its name by its President or a Vice President and its corporate
seal, or a facsimile thereof, to be hereto affixed and attested by its Secretary
or an Assistant Secretary.
Dated: ____________________________ NORTHERN STATES POWER COMPANY
Attest: ________________________ By ___________________________________
_________ Secretary _________ President
(Form of Trustee's Certificate)
<PAGE>
5
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee,
By _________________________________
Authorized Officer
and
WHEREAS, the Company is desirous of conveying, assigning, transferring,
mortgaging, pledging, setting over, and confirming to the Trustee and to its
respective successors in trust, additional property acquired by it subsequent to
the date of the preparation of the Supplemental Trust Indenture dated April,
1997; 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:
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,
<PAGE>
6
nuclear fuel, other boiler plant equipment, condensing equipment and all other
generating equipment; substations; electric transmission and distribution
systems, including structures, poles, towers, fixtures, conduits, insulators,
wires, cables, transformers, services and meters; steam heating mains and
equipment; gas transmission and distribution systems, including structures,
storage facilities, mains, compressor stations, purifier stations, pressure
holders, governors, services, and meters; telephone plant and related
distribution systems; trucks and trailers; office, shop, and other buildings and
structures, furniture and equipment; apparatus and equipment of all other kinds
and descriptions; materials and supplies; all municipal and other franchises,
leaseholds, licenses, permits, privileges, patents and patent rights; all shares
of stock, bonds, evidences of indebtedness, contracts, claims, accounts
receivable, choses in action and other intangibles, all books of account and
other corporate records;
Excluding, however, all merchandise and appliances heretofore or hereafter
acquired for the purpose of sale to customers and others;
All the estate, right, title, interest, and claim, whatsoever, at law as
well as in equity, which the Company now has or hereafter may acquire in and to
the aforesaid property and every part and parcel thereof subject, however, to
the right of the Company, until the happening of a completed default as defined
in Section 1 of Article XIII of the Original Indenture prior to the Effective
Date and upon the occurrence and continuation of a Completed Default as defined
in the Indenture on and after the Effective Date, to retain in its possession
all shares of stock, notes, evidences of indebtedness, other securities and cash
not expressly required by the provisions hereof to be deposited with the
Trustee, to retain in its possession all contracts, bills and accounts
receivable, motor cars, any stock of goods, wares and merchandise, equipment or
supplies acquired for the purpose of consumption in the operation, construction,
or repair of any of the properties of the Company, and to sell, exchange,
pledge, hypothecate, or otherwise dispose of any or all of such property so
retained in its possession free from the lien of the Indenture, without
permission or hindrance on the part of the Trustee, or any of the bondholders.
No person in any dealings with the Company in respect of any such property shall
be charged with any notice or knowledge of any such completed default (prior to
the Effective Date) or Completed Default (after the Effective Date) under the
Indenture while the Company is in possession of such property. Nothing contained
herein or in the Indenture shall be deemed or construed to require the deposit
with, or delivery to, the Trustee of any of such property, except such as is
specifically required to be deposited with the Trustee by some express provision
of the Indenture;
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 SERIES 2028 BONDS AND SERIES 2003 BONDS
SECTION 2.01. There hereby is created, for issuance under the Indenture, a
series of bonds designated Series due March 1, 2028, each of which shall bear
the descriptive title "First Mortgage Bond, Series due March 1, 2028" (the
"Series 2028 Bonds"), and the form thereof shall contain suitable provisions
with respect to the matters hereafter specified in this Section. Series 2028
Bonds shall be substantially of the tenor and purport hereinbefore recited.
Series 2028 Bonds shall mature March 1, 2028, and shall be issued as registered
bonds without coupons in denominations of a multiple of $1,000. The Series 2028
Bonds shall bear interest at the rate of 6 1/2% per annum payable semi-annually
on March 1 and September 1 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
<PAGE>
7
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. Series 2028
Bonds, 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 September 1, 1998, it shall be dated as of March 1, 1998,
unless (iii) below is applicable, (ii) if the Company shall at the time of the
authentication of a Series 2028 Bond, be in default in the payment of interest
upon the Series 2028 Bonds, such Series 2028 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
Series 2028 Bonds, if any Series 2028 Bond, 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
Series 2028 Bonds, the person in whose name any Series 2028 Bond, is registered
at the close of business on any Record Date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date notwithstanding any transfer or exchange of such Series 2028 Bond,
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 Series 2028 Bond, 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 Series 2028 Bond, 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
Series 2028 Bonds 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 (March 1 or September 1) shall mean the February 18 prior to such March 1
or August 21 prior to such September 1 unless such February 18 or August 21
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 Series 2028 Bond, 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 Series 2028 Bonds, 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 Series 2028 Bonds, 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 Series 2028 Bonds, 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.
<PAGE>
8
SECTION 2.02. There hereby is created, for issuance under the Indenture, a
series of bonds designated Series due March 1, 2003, each of which shall bear
the descriptive title "First Mortgage Bond, Series due March 1, 2003" (the
"Series 2003 Bonds"), and the form thereof shall contain suitable provisions
with respect to the matters hereafter specified in this Section. The Series 2003
Bonds shall be substantially of the tenor and purport hereinbefore recited. The
Series 2003 Bonds shall mature March 1, 2003, and shall be issued as registered
bonds without coupons in denominations of a multiple of $1,000. The Series 2003
Bonds shall bear interest at the rate of 5 7/8% per annum payable semi-annually
on March 1 and September 1 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. Series 2003 Bonds, 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 September 1, 1998, it shall be dated as of March
1, 1998, unless (iii) below is applicable, (ii) if the Company shall at the time
of the authentication of a Series 2003 Bond, be in default in the payment of
interest upon the Series 2003 Bonds, such Series 2003 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 Series 2003 Bonds, if any Series 2003 Bond, 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
Series 2003 Bonds, the person in whose name any Series 2003 Bond, is registered
at the close of business on any Record Date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date notwithstanding any transfer or exchange of such Series 2003 Bond,
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 Series 2003 Bond, 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 Series 2003 Bond, 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
Series 2003 Bonds 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 (March 1 or September 1) shall mean the February 18 prior to such March 1
or August 21 prior to such September 1 unless such February 18 or August 21
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 2.02, 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 Series 2003 Bond, 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 2.02. 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
<PAGE>
9
mailed, first class postage prepaid, to each holder of the Series 2003 Bonds, 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 Series
2003 Bonds, are registered on such Special Record Date and shall not be payable
pursuant to the paragraph immediately following in this Section 2.02.
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 Series 2003 Bonds, 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 2.02, such payment
shall be deemed practicable by the Trustee.
SECTION 2.03. The Series 2028 Bonds and the Series 2003 Bonds are not
redeemable prior to maturity for any reason and are not subject to a sinking
fund.
SECTION 2.04. The registered owner of any Bond or Bonds, at his option may
surrender the same with other Bonds of such 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 such 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 2.05 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.
SECTION 2.05. No charge shall be made by the Company for any exchange or
transfer of Bonds, other than for taxes or other governmental charges, if any,
that may be imposed in relation thereto.
SECTION 2.06. The Bonds, 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.
<PAGE>
10
SECTION 2.07. (a) Except as provided in subsections (c) and (g) below, the
registered holder of all of the Series 2028 Bonds and the Series 2003 Bonds
shall be The Depository Trust Company ("DTC") and such Bonds shall be registered
in the name of Cede & Co., as nominee for DTC. Payment of principal of and
interest on any Bonds 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 to the account of Cede & Co. on each such payment date for
the respective series of Bonds at the address indicated for Cede & Co. in the
bond register kept by the Trustee for the respective series of Bonds.
(b) The Series 2028 Bonds and the Series 2003 Bonds shall each be initially
issued in the form of a separate single authenticated fully registered
certificate in the aggregate principal amount of the Series 2028 Bonds and the
Series 2003 Bonds, respectively. Upon initial issuance, the ownership of such
Bonds 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 Series 2028
Bonds and the Series 2003 Bonds, respectively, registered in its name for the
purposes of payment of the principal of and interest on the Series 2028 Bonds
and Series 2003 Bonds, respectively, and of giving any notice permitted or
required to be given to holders under the Indenture, except as provided in
Section 2.07(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, 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 or interest on the Series 2028 Bonds
or the Series 2003 Bonds, as the case may be; any notice which is permitted or
required to be given to registered holders under the Indenture of Series 2028
Bonds or the Series 2003 Bonds, as the case may be; or any consent given or
other action taken by DTC as bondholder. The Trustee shall pay all principal of
and interest on the Bonds 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 and interest on such Series 2028 Bonds or the Series 2003
Bonds, as the case may be, to the extent of the sum or sums so paid. Except as
otherwise provided in Sections 2.07(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 Series 2028 Bonds
or the Series 2003 Bonds, as the case may be. 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 2.04 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
2.07(c). DTC may determine to discontinue providing its services with respect to
the Series 2028 Bonds or the Series 2003 Bonds 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 for
such Series 2028 Bonds or Series 2003 Bonds, as the case may be, as described in
this Supplemental Trust Indenture. If bond certificates are issued, the
provisions of the Indenture shall apply to, among other things, the transfer and
exchange of such certificates and the method of payment and principal of and
interest on such certificates. Whenever DTC requests the Company and the Trustee
to do so, the Company will direct the Trustee (at the sole cost and expense of
the Company) to cooperate with DTC in taking appropriate action after reasonable
notice (1) to make available one or more separate certificates evidencing the
<PAGE>
11
Series 2028 Bonds or the Series 2003 Bonds, as the case may be, to any
Participant or (2) to arrange for another book-entry depository to maintain
custody of certificates evidencing the Series 2028 Bonds or the Series 2003
Bonds, as the case may be, 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 Series 2028 Bonds
or the Series 2003 Bonds, as the case may be, (except as provided in Section
2.07(g) below). After such agreement has become effective, DTC shall present the
Series 2028 Bonds or the Series 2003 Bonds, as the case may be, 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
Series 2028 Bonds or the Series 2003 Bonds, as the case may be.
(d) Notwithstanding any other provision of this Supplemental Trust Indenture
to the contrary, so long as any Series 2028 Bonds are registered in the name of
Cede & Co., as nominee of DTC, all payments with respect to the principal of and
interest on such Series 2028 Bonds and all notices with respect to such Series
2028 Bonds shall be made and given, respectively, to DTC as provided in the
representation letter dated as of the date of delivery of the Series 2028 Bonds
among DTC, the Company and the Trustee. The Trustee is hereby authorized and
directed to comply with all terms of the representation letter.
Notwithstanding any other provision of this Supplemental Trust Indenture to
the contrary, so long as any Series 2003 Bonds are registered in the name of
Cede & Co., as nominee of DTC, all payments with respect to the principal of and
interest on such Series 2003 Bonds and all notices with respect to such Series
2003 Bonds shall be made and given, respectively, to DTC as provided in the
representation letter dated as of the date of delivery of the Series 2003 Bonds
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 Series 2028 Bonds or the Series 2003 Bonds by
the Company or the Trustee with respect to any consent or other action to be
taken by the registered holders of the Series 2028 Bonds or the Series 2003
Bonds, 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 OR INTEREST ON THE BONDS; (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; OR (4) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS A REGISTERED HOLDER.
SO LONG AS CEDE & CO. IS THE REGISTERED HOLDER OF THE SERIES 2028 BONDS AS
NOMINEE OF DTC, REFERENCES HEREIN TO REGISTERED HOLDERS OF SERIES 2028 BONDS
SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE BENEFICIAL OWNERS OF THE
SERIES 2028 BONDS NOR DTC PARTICIPANTS.
SO LONG AS CEDE & CO. IS THE REGISTERED HOLDER OF THE SERIES 2003 BONDS AS
NOMINEE OF DTC, REFERENCES HEREIN TO REGISTERED HOLDERS OF SERIES 2003 BONDS
SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE BENEFICIAL OWNERS OF THE
SERIES 2003 BONDS NOR DTC PARTICIPANTS.
<PAGE>
12
(g) The Company, in its sole discretion, may terminate the services of DTC
with respect to the Series 2028 Bonds and/or Series 2003 Bonds if the Company
determines that: (i) DTC is unable to discharge its responsibilities with
respect to the such Bonds; or (ii) a continuation of the requirement that all of
the outstanding Series 2028 Bonds or Series 2003 Bonds, as the case may be, must
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 Series 2028 Bonds or Series 2003 Bonds, as the case may be. 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 Series
2028 Bonds and/or the Series 2003 Bonds pursuant to subsections (c) or (g) of
this Section 2.07 after which no substitute book-entry depository is appointed,
the Series 2028 Bonds or Series 2003 Bonds, as the case may be, shall be
registered in whatever name or names holders transferring or exchanging Series
2028 Bonds or Series 2003 Bonds, as the case may be, shall designate in
accordance with the provisions of the Indenture.
ARTICLE III.
APPOINTMENT OF AUTHENTICATING AGENT.
SECTION 3.01. 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, 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 3.02. (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 3.02
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 3.02, 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 3.02.
(d) The Trustee agrees to pay to any authenticating agent, appointed in
accordance with the provisions of this Section 3.02, reasonable compensation for
its services, and the Trustee shall be entitled to be reimbursed for such
payments.
<PAGE>
13
SECTION 3.03. If an appointment is made pursuant to this Article III, the
registered Bonds, shall have endorsed thereon, in addition to the Trustee's
Certificate, an alternate Trustee's Certificate in the following form:
This bond is one of the bonds of the Series designated thereon, described in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee,
By
Authenticating Agent,
By
Authorized Officer.
SECTION 3.04. No provision of this Article III 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 IV.
FINANCING STATEMENT TO COMPLY WITH THE UNIFORM COMMERCIAL CODE.
SECTION 4.01. 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 4.02. 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 4.03. 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 March 1, 2002.................................................... $ 50,000,000
Series due February 1, 2003................................................. $ 50,000,000
Series due April 1, 2003.................................................... $ 80,000,000
Series due December 1, 2005................................................. $ 70,000,000
Resource Recovery Series I.................................................. $ 18,400,000
Pollution Control Series J.................................................. $ 5,450,000
Pollution Control Series K.................................................. $ 3,400,000
</TABLE>
<PAGE>
14
<TABLE>
<CAPTION>
FIRST MORTGAGE BONDS PRINCIPAL AMOUNT
- ---------------------------------------------------------------------------- ----------------
<S> <C>
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 4.04. This financing Statement is hereby adopted for all of the
First Mortgage Bonds of the series mentioned above secured by said Indenture.
SECTION 4.05. The 1937 Indenture and the prior Supplemental Trust
Indentures, as set forth below, have been filed or recorded in each and every
office in the States of Minnesota, North Dakota, and South Dakota designated by
law for the filing or recording thereof in respect of all property of the
Company subject thereto:
Original Indenture
Dated February 1, 1937
Supplemental Indenture
Dated June 1, 1942
Supplemental Indenture
Dated February 1, 1944
Supplemental Indenture
Dated October 1, 1945
Supplemental Indenture
Dated July 1, 1948
Supplemental Indenture
Dated August 1, 1949
Supplemental Indenture
Dated June 1, 1952
Supplemental Indenture
Dated October 1, 1954
Supplemental Indenture
Dated September 1, 1956
Supplemental Indenture
Dated August 1, 1957
Supplemental Indenture
Dated July 1, 1958
Supplemental Indenture
Dated December 1, 1960
Supplemental Indenture
Dated August 1, 1961
Supplemental Indenture
Dated June 1, 1962
Supplemental Indenture
Dated September 1, 1963
Supplemental Indenture
Dated August 1, 1966
Supplemental Indenture
Dated June 1, 1967
Supplemental Indenture
Dated October 1, 1967
Supplemental Indenture
Dated May 1, 1968
Supplemental Indenture
Dated October 1, 1969
Supplemental Indenture
Dated February 1, 1971
Supplemental Indenture
Dated May 1, 1971
Supplemental Indenture
Dated February 1, 1972
Supplemental Indenture
Dated January 1, 1973
Supplemental Indenture
Dated January 1, 1974
Supplemental Indenture
Dated September 1, 1974
Supplemental Indenture
Dated April 1, 1975
Supplemental Indenture
Dated May 1, 1975
Supplemental Indenture
Dated March 1, 1976
Supplemental Indenture
Dated June 1, 1981
Supplemental Indenture
Dated December 1, 1981
Supplemental Indenture
Dated May 1, 1983
Supplemental Indenture
Dated December 1, 1983
Supplemental Indenture
Dated September 1, 1984
<PAGE>
15
Supplemental Indenture
Dated December 1, 1984
Supplemental Indenture
Dated May 1, 1985
Supplemental Indenture
Dated September 1, 1985
Supplemental and Restated Indenture
Dated May 1, 1988
Supplemental Indenture
Dated July 1, 1989
Supplemental Indenture
Dated June 1, 1990
Supplemental Indenture
Dated October 1, 1992
Supplemental Indenture
Dated April 1, 1993
Supplemental Indenture
Dated December 1, 1993
Supplemental Indenture
Dated February 1, 1994
Supplemental Indenture
Dated October 1, 1994
Supplemental Indenture
Dated June 1, 1995
Supplemental Indenture
Dated April 1, 1997
SECTION 4.06. 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.
ARTICLE V.
AMENDMENTS TO INDENTURE.
SECTION 5.01. 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 the Series 2028 Bonds and the Series 2003 Bonds)
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 VI.
MISCELLANEOUS.
SECTION 6.01. 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 6.02. 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,
<PAGE>
16
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 and March 1, 1997.
SECTION 6.03. (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 6.04. 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 6.05. Wherever in this Supplemental Trust Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Supplemental Trust Indenture contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
SECTION 6.06. (a) This Supplemental Trust Indenture may be executed
simultaneously in several counter-
parts, 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
$250,000,000.
--------------
<PAGE>
17
IN WITNESS WHEREOF, on this 10th day of March, A.D. 1998, 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 March 1, 1998, 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 March 1, 1998, to be signed by its
President, a Vice President, or an Assistant Vice President, and attested by its
Secretary or an Assistant Secretary, for and in its behalf.
<TABLE>
<S> <C>
NORTHERN STATES POWER COMPANY,
BY EDWARD J. MCINTYRE, VICE PRESIDENT
Attest:
SUTTON A. PLOMBON, ASSISTANT SECRETARY.
Executed by Northern States
Power Company in presence of:
(CORPORATE SEAL)
MARY SCHELL, WITNESS
KEN BODELL, WITNESS HARRIS TRUST AND SAVINGS BANK,
as Trustee
BY K. HEALEY, VICE PRESIDENT
Attest:
D. G. DONOVAN, ASSISTANT SECRETARY.
Executed by Harris Trust and Savings
Bank in presence of:
(CORPORATE SEAL)
J. KINNEY, WITNESS
R. JOHNSON, WITNESS
</TABLE>
<PAGE>
18
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
On this 10th day of March, A.D. 1998, before me, FAYE WAHLSTRAND, a Notary
Public in and for said County in the State aforesaid, personally appeared EDWARD
J. MCINTYRE and SUTTON A. PLOMBON, to me personally known, and to me known to be
Vice President and Assistant 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 EDWARD J. MCINTYRE is Vice President, and she, the said SUTTON
A. PLOMBON, is Assistant 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
EDWARD J. MCINTYRE and SUTTON A. PLOMBON 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 10th day of March, A.D. 1998.
FAYE WAHLSTRAND
NOTARY PUBLIC, HENNEPIN COUNTY, MINN.
MY COMMISSION EXPIRES JANUARY 31, 2000
(NOTARIAL SEAL)
<TABLE>
<S> <C>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
</TABLE>
EDWARD J. MCINTYRE and SUTTON A. PLOMBON, being severally duly sworn, each
deposes and says that he, the said EDWARD J. MCINTYRE, is Vice President, and
she, the said SUTTON A. PLOMBON, is Assistant 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 10th day of March, A.D. 1998.
FAYE WAHLSTRAND
NOTARY PUBLIC, HENNEPIN COUNTY, MINN.
MY COMMISSION EXPIRES JANUARY 31, 2000
(NOTARIAL SEAL)
<PAGE>
19
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK ss.:
</TABLE>
On this 10th day of March, A.D. 1998, before me, M. TINERELLA, a Notary
Public in and for said County in the State aforesaid, personally appeared K.
HEALEY and D.G. DONOVAN, 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 he, the said K. HEALEY, is Vice President, and he, the said D.G. DONOVAN,
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 K. HEALEY and
D.G. DONOVAN 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 10th day of March, A.D. 1998.
M. TINERELLA
NOTARY PUBLIC, COOK COUNTY, ILLINOIS.
MY COMMISSION EXPIRES MAY 21, 2001
(NOTARIAL SEAL)
<TABLE>
<S> <C>
STATE OF ILLINOIS
COUNTY OF COOK ss.:
</TABLE>
K. HEALEY and D.G. DONOVAN, being severally duly sworn, each for himself
deposes and says that he, the said K. HEALEY, is Vice President, and he, the
said D.G. DONOVAN, 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 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 mortgagor.
Subscribed and sworn to before me this 10th day of March, A.D. 1998.
K. HEALEY
D.G. DONOVAN
M. TINERELLA
NOTARY PUBLIC, COOK COUNTY, ILLINOIS.
MY COMMISSION EXPIRES MAY 21, 2001
(NOTARIAL SEAL)
<PAGE>
A-1
SCHEDULE A
The property referred to in Article I of the foregoing Supplemental Trust
Indenture from Northern States Power Company to Harris Trust and Savings Bank,
Trustee, made as of March 1, 1998, 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. PROPERTIES IN THE STATE OF MINNESOTA
The following described real property, situate, lying and being in the
County of Chisago, to-wit:
1. That part of the Northwest Quarter of the Northwest Quarter of Section
29, Township 33 North, Range 21 West, described as follows: Beginning at
the Northwest corner of Section 29; thence East (assumed bearing) along
the North line of said Section 29 a distance of 279.40 feet; thence South
26 degrees 56 minutes East, a distance of 518.27 feet; thence North 63
degrees 11 minutes East a distance of 35.00 feet; thence South 26 degrees
56 minutes East a distance of 14.00 feet; thence South 63 degrees 11
minutes West a distance of 611.07 feet to the West line of said Section
29; thence North 00 degrees 29 minutes 50 seconds West along the said
West line a distance of 734.45 feet to the point of beginning.
The following described real property, situate, lying and being in the
County of Hennepin, to-wit:
1. Lot 32 and the Easterly 17.4 feet of Lot 33 Koehler's Addition to Mound.
The following described real property, situate, lying and being in the
County of Washington, to-wit:
1. Lots Five (5), Six (6), Seven (7), Eight (8), Nine (9), Ten (10), Eleven
(11) and Twelve (12), Block Eleven (11), of OAK PARK.
2. Lots One (1), Two (2), Three (3), Four (4), Thirteen (13), Fourteen (14),
Fifteen (15), and Sixteen (16), Block Eleven (11), OAK PARK.
3. Lots Five (5), Six (6), Seven (7), and Eight (8), Block Twelve (12), OAK
PARK.
II. GAS DISTRIBUTION LINES OF THE COMPANY
IN THE STATE OF MINNESOTA
1. Approximately 2,000 feet of 6" diameter, and approximately 7,000 feet of
4" diameter high pressure gas main, constructed in 1997 in Ramsey County,
known as the 'Highway 10 Line', serving a portion of the community of
Blaine in Anoka County, Minnesota.
<PAGE>
A-2
--------------
MORTGAGOR'S RECEIPT FOR COPY.
The undersigned Northern States Power Company, the Mortgagor described in
the foregoing Mortgage, hereby acknowledges that at the time of the execution of
the Mortgage, Harris Trust and Savings Bank, Trustee, the Mortgagee described
therein, surrendered to it a full, true, complete, and correct copy of said
instrument, with signatures, witnesses, and acknowledgments thereon shown.
NORTHERN STATES POWER COMPANY.
BY EDWARD J. MCINTYRE, VICE PRESIDENT
Attest:
SUTTON A. PLOMBON, ASSISTANT 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.
<PAGE>
Exhibit 12.01
NORTHERN STATES POWER COMPANY AND SUBSIDIARY COMPANIES
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
----------- ---------- --------- ------------ -----------
(Thousands of dollars)
<S> <C> <C> <C> <C> <C>
Earnings
Income from continuing
operations before accounting
change $ 237,320 $ 274,539 $ 275,795 $ 243,475 $ 211,740
Add
Taxes based on income (1)
Federal income taxes 105,733 153,515 142,492 112,611 99,952
State income taxes 23,008 40,635 34,988 35,746 28,076
Deferred income taxes-net (5,902) (30,561) (11,076) (6,100) 12,256
Tax credits - net (26,363) (17,395) (14,409) (13,049) (9,544)
Foreign income taxes 236 616 233 219
Fixed charges 169,377 141,961 133,328 115,083 113,562
Deduct
Undistributed equity in earnings of
unconsolidated investees 5,364 25,976 41,870 23,588 1,142
---------- ---------- ---------- ---------- ----------
Earnings $ 498,045 $ 537,334 $ 519,481 $ 464,397 $ 454,900
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Fixed charges
Interest charges per
statement of income $ 169,377 $ 141,961 $ 133,328 $ 115,083 $ 113,562
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Ratio of earnings to fixed
charges 2.9 3.8 3.9 4.0 4.0
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
</TABLE>
(1) Includes income taxes included in Other Income (Expense).
