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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) JULY 21, 1999
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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 or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On July 21, 1999, 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 $250,000,000 in
aggregate principal amount of the Company's Senior Notes, Series due 2009.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibits
1.01 Underwriting Agreement, dated July 21, 1999 between Northern States
Power Company and Salomon Smith Barney Inc., Goldman, Sachs & Co.,
Lehman Brothers Inc. and Merrill Lynch & Co. relating to $250,000,000
Senior Notes, Series due 2009.
4.01 Trust Indenture dated July 1, 1999, between Northern States Power
Company and Norwest Bank Minnesota, National Association as Trustee.
4.02 Supplemental Trust Indenture dated July 15, 1999, between Northern
States Power Company and Norwest Bank Minnesota, National Association
as Trustee, creating $250,000,000 principal amount Senior Notes,
Series due 2009.
12.01 Computation of ratio of earnings to fixed charges.
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: July 22, 1999
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NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
DEBT SECURITIES
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Minnesota corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), its Debt Securities of the designation, with the terms
and in the aggregate principal amount specified in Schedule I hereto (the
"Debt Securities") to be issued under its Indenture, dated as of June 1,
1999, from the Company to Norwest Bank Minnesota, National Association, as
trustee (the "Debt Trustee"), as to be amended and supplemented by a
supplemental indenture relating to the Debt Securities (such Indenture as so
supplemented and amended being hereinafter referred to as the "Debt
Indenture"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form, including a prospectus, for the registration under
the Act of the Debt Securities, Senior Notes and First Mortgage Bonds, which
registration statement has become effective. Such registration statement and
prospectus may have been amended or supplemented from time to time prior to
the date of this Agreement (which date is set forth in Schedule I hereto).
Any such amendment or supplement was filed with the Commission and any such
amendment has become effective. The Company will file with the Commission a
prospectus supplement (the "Prospectus Supplement") relating to the Debt
Securities pursuant to Rule 424 and/or Rule 434 under the Act. Copies of
such registration statement and prospectus, any such amendment or supplement
and all documents incorporated by reference therein which were filed with the
Commission on or prior to the date of this Agreement have been delivered to
you and copies of the Prospectus Supplement will be delivered to you
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promptly after it is filed with the Commission. Such registration statement,
as amended prior to the date of this Agreement, and such prospectus, as
amended and supplemented prior to the date of this Agreement and as
supplemented by the Prospectus Supplement, are hereinafter called the
"Registration Statement" and the "Prospectus", respectively. Any reference
herein to the Registration Statement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act") on or before the date of this Agreement
and, if the Company files any document pursuant to the Exchange Act after the
date of this Agreement and prior to the termination of the offering of the
Debt Securities by the Underwriters, which documents are deemed to be
incorporated by reference into the Prospectus, the term "Prospectus" shall
refer also to said prospectus as supplemented by the documents so filed from
and after the time said documents are filed with the Commission. There are
no contracts or documents of the Company or any of its subsidiaries that are
required to be filed as exhibits to the Registration Statement or any
documents incorporated by reference therein by the Act, the Exchange Act or
the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects
with the requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date
(as hereinafter defined), the Prospectus will comply in all material respects
with the Act and the rules and regulations of the Commission thereunder and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Forms T-1)
under the Trust Indenture Act of the Debt Trustee and the trustees for the
Senior Notes and First Mortgage Bonds or (B) the information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically for use
in the Registration Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission thereunder;
and none of such documents include or will include any untrue statement of a
material fact or omit or will omit to state any material fact required to be
stated therein or necessary to make the statements therein in the light of
the circumstances under which they were made not misleading.
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(d) PricewaterhouseCoopers LLP which audited certain of the financial
statements incorporated by reference in the Registration Statement, is an
independent public accountant as required by the Act and the rules and
regulations of the Commission thereunder.
(e) The financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the
Registration Statement or Prospectus fairly present the financial position of
the Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations and changes in financial position for the
periods specified, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the Prospectus Supplement. The
unaudited pro forma financial information incorporated by reference in the
Registration Statement and the Prospectus complies in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota with
due corporate authority to carry on the business in which it is engaged and
to own and operate the properties used by it in such business, as described
in the Prospectus; the Company is qualified to do business as a foreign
corporation and is in good standing under the laws of the States of North
Dakota, South Dakota and Arizona; and the Company is not required by the
nature of its business to be licensed or qualified as a foreign corporation
in any other state or jurisdiction; and, except as set forth in the
Prospectus Supplement, the Company has all material licenses and approvals
required at the date hereof to conduct its business.
(g) Each subsidiary of the Company named in Exhibit 21.01 to the
Company's most recent Annual Report on Form 10-K ("Significant Subsidiary")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued and is fully paid and
non-assessable; and the capital stock of each such subsidiary owned by the
Company, directly or through subsidiaries, is owned free and clear of any
pledge, lien, encumbrance, claim or equity.
(h) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
Supplement, neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are material to
the Company and its subsidiaries, and there has not been any material change
in the capital stock or long-term debt of the Company or any of its
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subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the Debt
Indenture, the issuance and delivery of the Debt Securities, the consummation
of the transactions herein contemplated, the fulfillment of the terms hereof,
nor compliance with the terms and provisions of this Agreement, the Debt
Securities and the Debt Indenture will conflict with, or result in the breach
of, any of the terms, provisions or conditions of the Restated Articles of
Incorporation, as amended, or by-laws of the Company, or of any contract,
agreement or instrument to which the Company is a party or in which the
Company has a beneficial interest or by which the Company is bound or of any
order, rule or regulation applicable to the Company of any court or of any
federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or over its properties.
(j) The Debt Securities have been duly authorized for issuance and sale
pursuant to this Agreement and, when executed and authenticated in accordance
with the Debt Indenture and delivered and paid for as provided herein, will
be duly issued and will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency and other laws affecting enforcement of creditors'
rights, and will be entitled to the benefits of the Debt Indenture which will
be substantially in the form heretofore delivered to you.
(k) The Debt Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Debt Trustee, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors'
rights.
(l) The Minnesota Public Utilities Commission has issued its order
approving capital structure which order authorizes the issuance of the Debt
Securities, and no other approval of any regulatory public body, state or
federal, is, or will be at the Closing Date (as hereinafter defined),
necessary in connection with the issuance and sale of the Debt Securities
pursuant to this Agreement, other than approvals that may be required under
state securities laws.
(m) The Company has good and valid title to all real and fixed property
and leasehold rights which are owned by it, subject only to taxes and
assessments not yet delinquent; the lien of First Mortgage Indenture; as to
parts of the Company's property, certain easements, conditions, restrictions,
leases, and similar encumbrances which do not affect the Company's use of
such property in the usual course of its business, and certain minor defects
in titles which are not material, and defects in titles to certain properties
which are not essential to the Company's business; and mechanics' lien claims
being contested or not of record or for the satisfaction or discharge of
which adequate provision has been made by the Company pursuant to the First
Mortgage Indenture; and any real property and buildings held under lease by
the Company is
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held by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company.
(n) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company and
its subsidiaries (A) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct its respective business and (C) are in
compliance with all terms and conditions of any such permits, licenses or
approvals, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Representatives and each other Underwriter, and
the Representatives and each other Underwriter agree, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the respective principal amounts of the Debt Securities
set forth opposite their respective names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than eight full business
days thereafter as the Representatives and the Company shall designate),
which date and time may be postponed by agreement between the Representatives
and the Company (such date and time being herein called the "Closing Date").
Delivery of the Debt Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or official bank
check or checks payable in New York Clearing House (next day) funds or, if so
indicated in Schedule I
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hereto, in federal (same day) funds. The Debt Securities will be delivered
in definitive registered form except that, if for any reason the Company is
unable to deliver the Debt Securities in definitive form, the Company
reserves the right, as provided in the Debt Indenture, to make delivery in
temporary form. Any Debt Securities delivered in temporary form will be
exchangeable without charge for Debt Securities in definitive form. The Debt
Securities will be registered in the names of the Underwriters and in the
principal amounts set forth in Schedule II hereto except that if the Company
receives a written request from the Representatives prior to noon on the
second business day preceding the Closing Date giving the names in which the
Debt Securities are to be registered and the principal amounts thereof (which
shall in each case be a multiple of $1,000) the Company will deliver the Debt
Securities so registered. The Debt Securities will be made available to the
Representatives for checking in New York, New York, not later than 2:00 p.m.,
New York City time, on the business day preceding the Closing Date.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule 434
under the Act and will notify the Representatives promptly of such filing.
During the period for which a prospectus relating to the Debt Securities is
required to be delivered under the Act, the Company will promptly advise the
Representatives (i) when any amendment to the Registration Statement shall
have become effective, (ii) when any subsequent supplement to the Prospectus
(including documents deemed to be incorporated by reference into the
Prospectus) has been filed, (iii) of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for any additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceedings for that purpose. The
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (including documents deemed to be incorporated
by reference into the Prospectus) unless the Company has furnished to the
Representatives a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which the Representatives reasonably
object. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Debt Securities
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules and regulations of the Commission thereunder, the
Company promptly, subject to paragraph (a) of this Section 4, will prepare
and file an amendment or supplement to the Prospectus with the Commission or
will make a filing with the Commission pursuant to Section 13 or 14 of the
Exchange Act, which will correct such statement or omission or will effect
such compliance.
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(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of such
period, but in any event no later than eighteen months after the "effective
date of the Registration Statement" (as defined in Rule 158(c) under the
Act), which will satisfy the provision of Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including at the option
of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Forms T -1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such
documents, in each case as soon as available and in such quantities as the
Representatives may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Debt Securities for
sale under the laws of such jurisdictions as the Representatives may
designate and will maintain such qualifications in effect so long as required
for the distribution of the Debt Securities; PROVIDED that the Company shall
not be required to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(f) So long as the Debt Securities are outstanding, the Company will
furnish (or cause to be furnished) to each of the Representatives, upon
request, copies of (i) all reports to stockholders of the Company and (ii)
all reports and financial statements filed with the Commission or any
national securities exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or
otherwise dispose of any debt securities of the Company (except under prior
contractual commitments which have been disclosed to you), without the prior
written consent of the Representatives, which consent shall not be
unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, the Company will pay all
costs and expenses incident to the performance of the obligations of the
Company hereunder, including, without limiting the generality of the
foregoing, all costs, taxes and expenses incident to the issue and delivery
of the Debt Securities to the Underwriters, all fees and expenses of the
Company's counsel and accountants, all costs and expenses incident to the
preparing, printing and filing of the Registration Statement (including all
exhibits thereto), the Prospectus (including all documents incorporated by
reference therein) and any amendments thereof or supplements
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thereto, all costs and expenses (including fees and expenses of counsel)
incurred in connection with "blue sky" qualifications, the determination of
the legality of the Debt Securities for investment by institutional investors
and the rating of the Debt Securities, and all costs and expenses of the
printing and distribution of all documents in connection with this
underwriting. Except as provided in this Section 5 and Section 8 hereof, the
Underwriters will pay all their own costs and expenses, including the fees of
their counsel and any advertising expenses in connection with any offer they
may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Debt Securities shall be subject, in the
discretion of the Representatives, to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof
and the Closing Date, to the accuracy of the statements of Company officers
made in any certificates given pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Prospectus Supplement relating to the Debt Securities shall
have been filed with the Commission pursuant to Rule 424(b) and/or Rule 434
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of Gary R. Johnson, Vice President and General Counsel of the
Company, substantially in the form included as Exhibit A.
(c) The Representatives shall have received from Gardner, Carton &
Douglas, Chicago, Illinois, counsel for the Underwriters, such opinion or
opinions dated the Closing Date with respect to the incorporation of the
Company, this Agreement, the validity of the Debt Indenture, the Debt
Securities, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this
Section 6 and to the further effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the
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Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date; and
(ii) there has been no material adverse change in the condition of the
Company and its subsidiaries taken as a whole, financial or otherwise, or
in the earnings, affairs or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, from that set forth or contemplated by the Registration
Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants as
required by the Act and published rules and regulations of the Commission
thereunder, (ii) in their opinion, the consolidated financial statements and
supplemental schedules incorporated by reference in the Registration
Statement and covered by their opinion filed with the Commission under
Section 13 of the Exchange Act comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
published rules and regulations of the Commission thereunder, (iii) they have
performed limited procedures, not constituting an audit, including a reading
of the latest available interim financial statements of the Company and its
consolidated subsidiaries, a reading of the minutes of meetings of the Board
of Directors, committees thereof, and of the Shareholders, of the Company and
its subsidiaries since the date of the most recent audited financial
statements included or incorporated by reference in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that:
(a) any material modifications should be made to any unaudited consolidated
financial statements of the Company included or incorporated by reference in
the Registration Statement or Prospectus for them to be in conformity with
generally accepted accounting principles or any unaudited consolidated
financial statements of the Company included or incorporated by reference in
the Registration Statement or Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Exchange
Act and the rules and regulations of he Commission applicable to Form 10-Q;
(b) with respect to the period subsequent to the date of the most recent
financial statements included or incorporated by reference in the Prospectus
and except as set forth in or contemplated by the Registration Statement or
Prospectus, there were any changes, at a specified date not more than five
business days prior to the date of the letter, in the capital stock of the
Company, increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company and its consolidated subsidiaries as
compared with the amounts shown on the most recent consolidated balance sheet
included or incorporated in the Prospectus, or for the period from the date
of the most recent financial statements included or incorporated by reference
in the Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in operating
revenues, operating income, net income, or earnings per share of Common Stock
of the Company and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said
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explanation is not deemed necessary by the Representatives; (iv) they have
carried out specified procedures performed for the purpose of comparing
certain specified financial information and percentages (which is limited to
financial information derived from general accounting records of the Company)
included or incorporated by reference in the Registration Statement and
Prospectus with indicated amounts in the financial statements or accounting
records of the Company and (excluding any questions of legal interpretation)
have found such information and percentages to be in agreement with the
relevant accounting and financial information of the Company referred to in
such letter in the description of the procedures performed by them and (v) on
the basis of a reading of the unaudited pro forma financial information
incorporated by reference in the Registration Statement and the Prospectus,
carrying out certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (v), inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amouns in the unaudited pro forma financial information, nothing
came to their attention that caused them to believe that the unaudited pro
forma financial information does not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such information.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been
any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 6 which makes it impractical or inadvisable in
the judgment of the Representatives to proceed with the public offering or
the delivery of the Debt Securities on the terms and in the manner
contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded the Company's debt securities
or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus Supplement, and (ii) since the date of this Agreement, neither the
Company nor any of its subsidiaries shall have incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, not in
the ordinary course of business, which are material to the Company and its
subsidiaries, and there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
10
<PAGE>
operations of the Company and its subsidiaries otherwise than as set forth or
contemplated in the Prospectus Supplement, the effect of which, in any such
case described in clause (i) or (ii) is in the judgment of the Underwriters
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Debt Securities on the terms
and in the manner contemplated by the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact which in the opinion of
counsel for the Underwriters is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they
may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. CONDITIONS OF COMPANY'S OBLIGATIONS. The obligations of the
Company to sell and deliver the Debt Securities are subject to the following
conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, threatened.
(b) The order of the Minnesota Public Utilities Commission referred
to in paragraph (1) of Section 1 shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Debt
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company
will
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<PAGE>
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses that shall have been reasonably incurred by them in connection with
the proposed purchase and sale of the Debt Securities.
9. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the registration statement for the registration
of the Debt Securities as originally filed or in any amendment thereof, or in
the Preliminary Prospectus Supplement or the Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading and agrees
to reimburse each such indemnified party for any legal or other expenses as
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damages, liability or action; PROVIDED that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use therein and PROVIDED FURTHER that such indemnity with
respect to a prospectus included in the registration statement or any
amendment thereto prior to the supplementing thereof with the Prospectus
Supplement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Debt Securities which are the
subject thereof if such person was not sent or given a copy of the Prospectus
(but without the documents incorporated by reference therein) at or prior to
the confirmation of the sale of such Debt Securities to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such prospectus was corrected in the
Prospectus, provided that the Company shall have delivered the Prospectus, in
a timely manner and in sufficient quantities to permit such delivery by the
Underwriters. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Underwriters but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for use in the
documents referred to in the foregoing indemnity, and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
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<PAGE>
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 9, notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory
to such indemnified party; PROVIDED THAT if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to assume such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 9 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel and one local counsel, approved by the Representatives in
the case of subparagraph (a), representing the indemnified parties under
subparagraphs (a) or (b), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Debt Securities If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection
13
<PAGE>
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and
the paries' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Debt Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
10. DEFAULT BY AN UNDERWRITER. (a) If any Underwriter shall default in
its obligation to purchase the Debt Securities which it has agreed to
purchase hereunder (in this Section called the "Unpurchased Debt
Securities"), the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Unpurchased
Debt Securities on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for
the purchase of such Unpurchased Debt Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Unpurchased Debt Securities on such terms. In the event that,
within the respective prescribed period, the
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<PAGE>
Representatives notify the Company that they have so arranged for the
purchase of such Unpurchased Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Debt Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Unpurchased Debt Securities for a period
of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus as amended
or supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as
if such person had originally been a party to this Agreement with respect to
such Unpurchased Debt Securities
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Debt Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Debt Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Debt
Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Debt Securities which such
Underwriter agreed to purchase hereunder) of the Unpurchased Debt Securities
of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Debt Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Debt Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Unpurchased Debt Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 5 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for all Debt Securities, if prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established
on such Exchange, (ii) if a banking moratorium shall have been declared
either by Federal, Minnesota or New York State authorities, (iii) if trading
in any securities of the Company shall have been suspended or halted, or (iv)
if there shall have occurred any outbreak
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<PAGE>
or escalation of hostilities involving the United States or the declaration
by the United States of a war or national emergency or any other calamity or
crisis the effect of which on the financial markets in the United States is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the public offering or delivery of the Debt
Securities on the terms and in the manner contemplated in the Prospectus.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
the Company or any of their respective officers, directors or controlling
persons within the meaning of the Act, and will survive delivery of and
payment for the Debt Securities The provisions of Sections 5, 8 and 9 hereof
shall survive the termination or cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and, if
sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule 1
hereto or, if sent to the Company, will be mailed, delivered or transmitted
and confirmed to it at 414 Nicollet Mall, Minneapolis, Minnesota 55401,
attention Secretary.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9
hereof, and no other person will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of Minnesota.
16. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which, taken together, shall constitute a single agreement among the
parties to such counterparts.
17. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent
and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and
that the Representatives' execution and delivery of this Agreement and any
action under this Agreement taken by such Representatives will be binding
upon all Underwriters.
18. OTHER. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
16
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By \s\ Edward J. McIntyre
----------------------------------
Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON SMITH BARNEY INC.
By \s\ Peter H. Kind
---------------------------------
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
17
<PAGE>
SCHEDULE I
Underwriting Agreement dated July 21, 1999
Registration Statement No. 333-67675
Representatives and Addresses: Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Debt Securities:
Designation: 6.875% Senior Notes, Series due 2009
Principal Amount: $250,000,000
Supplemental Indenture dated as of July 15, 1999
Date of Maturity: August 1, 2009
Interest Rate: 6.875% per annum, payable February 1 and August 1
of each year, commencing February 1, 2000
Purchase Price: 98.629% of the principal amount thereof, plus
accrued interest from July 26, 1999 to the date of
payment and delivery.
Public Offering Price: 99.279% of the principal amount thereof, plus
accrued interest from July 26, 1999 to the date of
payment and delivery.
Redemption Provisions:
The Company may redeem at any time at a redemption
price equal to the greater of (i) the principal
amount or (ii) the sum of the present values of
the remaining scheduled payments of principal and
interest, discounted to the date of redemption on
a semi-annual basis at the Treasury Yield plus
0.15%, plus accrued interest to the date of
redemption.
Payment to be made in federal (same day) funds. X Yes No
----- -----
Closing Date and Location: July 26, 1999
Northern States Power Company
414 Nicollet Mall
Minneapolis, Minnesota 55401
1
<PAGE>
Office for Delivery of Debt Securities: The Depository Trust Company
c/o Norwest Bank Minnesota,
National Bank
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Office for Payment of Debt Securities: Northern States Power Company
414 Nicollet Mall
Minneapolis, Minnesota 55401
Office for Checking of Debt Securities: The Depository Trust Company
c/o Norwest Bank Minnesota,
National Bank
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
2
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME AMOUNT
- ---- ------------
<S> <C>
Salomon Smith Barney Inc.. . . . . . . . . . . . . . . $100,000,000
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . 50,000,000
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . 50,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . 50,000,000
------------
Total. . . . . . . . . . . . . . . . . . . . . $250,000,000
------------
------------
</TABLE>
3
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
RE: $ PRINCIPAL AMOUNT OF DEBT SECURITIES , SERIES DUE , %
OF NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, a Minnesota corporation,
herein called the "Company," with respect to the issue and sale by the
Company of $ principal amount of Debt Securities , Series due
, % herein called the "Debt Securities " In connection
therewith I have participated in the preparation of the proceedings for the
issuance and sale of the Debt Securities including the Underwriting Agreement
dated , between you and the Company relating to your purchase of
the Debt Securities, herein called the "Agreement," and have either
participated in the preparation of or examined the Indenture dated May 1,
1999 and the Supplemental Indenture dated as of ____________, creating the
Debt Securities, all from the Company to Norwest Bank Minnesota, National
Association, as Trustee (which Indenture and Supplemental Indenture are
herein collectively called the "Indenture"). I also have participated in the
preparation of or examined the registration statement and any amendments
thereto and the accompanying prospectuses and any supplements thereto, as
filed under the Securities Act of 1933, as amended (the "Act"), with respect
to the Debt Securities Whenever the terms "Registration Statement" or
"Prospectus" are used herein, they shall have the respective meanings set
forth in the Agreement. My examination has extended to all statutes,
records, instruments, and documents which I have deemed necessary to examine
for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of
the State of Minnesota; has corporate power, right, and authority to do
business and to own property in the states of Minnesota, North Dakota,
South Dakota and Arizona in the manner and as set forth in the Prospectus;
has corporate power, right and authority to own securities of its
subsidiaries; and has corporate power, right, and authority to make the
Debt Indenture and issue and sell the Debt Securities;
2. The authorized capital stock of the Company is as set forth in
the Prospectus and all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable;
<PAGE>
3. Each Significant Subsidiary, as defined in the Agreement, of the
Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business requires
such qualification; all of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the capital stock of each such subsidiary owned by
the Company, directly or through subsidiaries, is owned free and clear of
any pledge, lien, encumbrance, claim or equity;
4. The Agreement has been duly authorized, executed, and delivered
by the Company and is a valid and binding obligation of the Company, except
to the extent that the provisions for indemnities may be held to be
unenforceable as against public policy;
5. The Indenture has been duly authorized by appropriate corporate
proceedings on the part of the Company, has been duly executed and
delivered and constitutes a legal, valid, and binding instrument
enforceable in accordance with its terms except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws affecting enforcement of
creditors' rights;
6. The issuance of the Debt Securities in accordance with the terms
of the Indenture and the sale and delivery thereof pursuant to the
provisions of the Agreement have been duly authorized by the Company; the
statements made under the caption "Description of Debt Securities" in the
Prospectus, insofar as they purport to summarize provisions of documents
specifically referred to therein, fairly present the information called for
with respect thereto by Form S-3; the Debt Securities are in due legal
form, constitute legal, valid, and binding obligations of the Company, and
(subject to the qualifications expressed in paragraph 5 above with respect
to the enforceability of certain provisions of the Indenture) are
enforceable in accordance with their terms;
7. The consummation of the transactions contemplated in the
Agreement and the fulfillment of the terms thereof and compliance by the
Company with all the terms and provisions of the Indenture will not result
in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument known to me to which the Company is a party or by which it is
bound, or the Restated Articles of Incorporation, as amended, or by-laws of
the Company or, to the best of my knowledge, any order, rule or regulation
applicable to the Company of any court or of any Federal or state
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company or its property;
8. The Registration Statement has become effective under the Act.
The Prospectus Supplement (as defined in the Agreement) has been filed
pursuant to Rule 424(b) under the Act, and no proceedings for a stop order
have been instituted or to the knowledge of such counsel are pending or
threatened under Section 8(d) of the Act; the Minnesota Public Utilities
Commission has issued its order approving the Company's
2
<PAGE>
capital structure which order authorizes the issuance of the Debt
Securities; the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"); and no
further approval of, authorization, consent, certificate or order of any
governmental body, federal, state or other, is required in connection
with the issuance and sale of the Debt Securities by the Company to you
as provided in the Agreement, except as may be required by state
securities laws;
9. At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements and supporting
schedules included or incorporated by reference therein, as to which no
opinion is being expressed) complied as to form in all material respects
with the requirements of the Act, the rules and regulations thereunder, the
Trust Indenture Act and the rules and regulations thereunder;
10. I do not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as required nor
of any contracts or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
11. The Company has all necessary power under statutory provisions,
franchises (which expire at various dates), or permits to serve the
customers in the jurisdictions where it provided electric and gas service,
except in certain instances that are not material to the Company; and
12. All statements contained in the Registration Statement and
Prospectus under the caption "Description of Debt Securities" purporting to
set forth the opinion of counsel or purporting to be based upon the opinion
of counsel correctly set forth my opinion on said respective matters.
In the course of my participation in the preparation of the Registration
Statement and Prospectus I made investigations as to the accuracy of certain
of the statements of fact contained therein, I discussed other matters with
officers, employees, and representatives of the Company, and I examined
various corporate records and data. While I do not pass upon or assume
responsibility for, and shall not be deemed to have independently verified,
the accuracy and completeness of the statements contained in the Registration
Statement or Prospectus (except as to matters set forth in paragraphs 9 and
12 above) nothing has come to my attention that would lead me to believe that
the Registration Statement at the time it became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of the date of the Agreement or at the
date hereof contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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<PAGE>
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
4
<PAGE>
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NORTHERN STATES POWER COMPANY
(A MINNESOTA CORPORATION)
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE
DATED AS OF JULY 1, 1999
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PROVIDING FOR ISSUANCE OF DEBT SECURITIES
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CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(a) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
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SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
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310(a)(1) 8.9 43
310(a)(2) 8.9 43
310(a)(3) NOT APPLICABLE --
310(a)(4) NOT APPLICABLE --
310(a)(5) 8.9 43
310(b) 8.8 43
310(c) NOT APPLICABLE --
311(a) 8.14 46
311(b) 8.14 46
311(c) NOT APPLICABLE --
312(a) 6.1(a) 31
312(b) 6.1(b) 31
312(c) 6.1(c) 32
313(a) 6.3(a) 33
313(b) 6.3(b) 33
313(c) 6.3(d) 33
313(d) 6.3(c) and 6.3(d) 33
314(a) 6.2(a), 6.2(b) and 6.2(c) 30-32
314(b) NOT APPLICABLE 30
314(c)(1) Definition of Officers' Certificate, 6.5 and 14.5(a) 5;30;56
314(c)(2) Definition of Opinion of Counsel and 14.5 5;56
314(c)(3) NOT APPLICABLE --
314(d)(1) NOT APPLICABLE 4;23
314(d)(2) NOT APPLICABLE 4;23
314(d)(3) NOT APPLICABLE 23
314(e) 14.5(b) 56
314(f) NOT APPLICABLE --
315(a) 8.1 and 8.2 40-42
315(b) 7.8 39
315(c) 8.1(a) 40
315(d) 8.1(b) 40
315(e) 7.9 39
316(a) 7.7 39
9.4 47
12.2 53
316(b) 7.4 38
12.2 53
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SECTION OF TRUST
INDENTURE ACT SECTION OF INDENTURE PAGE
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316(c) 9.6 48
317(a)(1) 7.2(b) 36
317(a)(2) 7.2(c) 36
317(b) 4.2 27
5.4 29
318(a) 14.7 57
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS................................................................................1
Section 1.1. General...............................................................................1
Section 1.2. Trust Indenture Act...................................................................1
Section 1.3. Definitions...........................................................................2
ARTICLE II. FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES............................7
Section 2.1. Form Generally........................................................................7
Section 2.2. Form Of Trustee's Certificate Of Authentication.......................................7
Section 2.3. Amount Unlimited......................................................................7
Section 2.4. Denominations, Dates, Interest Payment And Record Dates...............................8
Section 2.5. Execution, Authentication, Delivery And Dating........................................9
Section 2.6. Exchange And Registration Of Transfer Of Securities..................................12
Section 2.7. Mutilated, Destroyed, Lost Or Stolen Securities......................................12
Section 2.8. Temporary Securities.................................................................13
Section 2.9. Cancellation Of Securities Paid, Etc.................................................14
Section 2.10. Interest Rights Preserved............................................................14
Section 2.11. Special Record Date..................................................................14
Section 2.12. Payment Of Securities................................................................14
Section 2.13. Securities Issuable In The Form Of A Global Security.................................15
ARTICLE III. REDEMPTION OF SECURITIES..................................................................17
Section 3.1. Applicability Of Article.............................................................17
Section 3.2. Notice Of Redemption; Selection Of Securities........................................17
Section 3.3. Payment Of Securities On Redemption; Deposit Of Redemption Price.....................18
ARTICLE IV. SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS..............................................20
Section 4.1. Satisfaction And Discharge...........................................................20
Section 4.2. Deposited Moneys To Be Held In Trust By Trustee......................................21
Section 4.3. Paying Agent To Repay Moneys Held....................................................21
Section 4.4. Return Of Unclaimed Moneys...........................................................21
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY.......................................................22
Section 5.1. Payment Of Principal, Premium And Interest...........................................22
Section 5.2. Office For Notices And Payments, Etc.................................................22
Section 5.3. Appointments To Fill Vacancies In Trustee's Office...................................22
Section 5.4. Provision As To Paying Agent.........................................................22
Section 5.5. Certificates And Notice To Trustee...................................................23
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ARTICLE VI. SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE...........................24
Section 6.1. Securityholder Lists.................................................................24
Section 6.2. Securities And Exchange Commission Reports...........................................25
Section 6.3. Reports By The Trustee...............................................................26
ARTICLE VII. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS OF DEFAULT..........................26
Section 7.1. Events Of Default....................................................................26
Section 7.2. Payment Of Securities On Default; Suit Therefor......................................28
Section 7.3. Application Of Moneys Collected By Trustee...........................................29
Section 7.4. Proceedings By Secuirtyholders.......................................................30
Section 7.5. Proceedings By Trustee...............................................................31
Section 7.6. Remedies Cumulative And Continuing...................................................31
Section 7.7. Direction Of Proceedings And Waiver Of Defaults By Majority Of Securityholders.......31
Section 7.8. Notice Of Default....................................................................32
Section 7.9. Undertaking To Pay Costs.............................................................32
ARTICLE VIII. CONCERNING THE TRUSTEE....................................................................33
Section 8.1. Duties And Responsibilities Of Trustee...............................................33
Section 8.2. Reliance On Documents, Opinions, Etc.................................................34
Section 8.3. No Responsibility For Recitals, Etc..................................................35
Section 8.4. Trustee, Authenticating Agent, Paying Agent Or Registrar May Own Securities..........35
Section 8.5. Moneys To Be Held In Trust...........................................................35
Section 8.6. Compensation And Expenses Of Trustee.................................................35
Section 8.7. Officers' Certificate As Evidence....................................................36
Section 8.8. Conflicting Interest Of Trustee......................................................36
Section 8.9. Existence And Eligibility Of Trustee.................................................36
Section 8.10. Resignation Or Removal Of Trustee....................................................36
Section 8.11. Appointment Of Successor Trustee.....................................................37
Section 8.12. Acceptance By Successor Trustee......................................................37
Section 8.13. Succession By Merger, Etc............................................................38
Section 8.14. Limitations On Rights Of Trustee As A Creditor.......................................38
Section 8.15. Authenticating Agent.................................................................39
ARTICLE IX. CONCERNING THE SECURITYHOLDERS............................................................40
Section 9.1. Action By Securityholders............................................................40
Section 9.2. Proof Of Execution By Securityholders................................................40
Section 9.3. Who Deemed Absolute Owners...........................................................40
Section 9.4. Company-Owned Securities Disregarded.................................................40
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Section 9.5. Revocation Of Consents; Future Holders Bound.........................................41
Section 9.6. Record Date For Securityholder Acts..................................................41
ARTICLE X. SECURITYHOLDERS' MEETING..................................................................41
Section 10.1. Purposes Of Meetings.................................................................41
Section 10.2. Call Of Meetings By Trustee..........................................................42
Section 10.3. Call Of Meetings By Company Or Securityholders.......................................42
Section 10.4. Qualifications For Voting............................................................42
Section 10.5. Regulations..........................................................................42
Section 10.6. Voting...............................................................................43
Section 10.7. Rights Of Trustee Or Securityholders Not Delayed.....................................44
ARTICLE XI. CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION................................44
Section 11.1. Company May Consolidate, Etc. Only On Certain Terms..................................44
Section 11.2. Successor Corporation Substituted....................................................44
ARTICLE XII. SUPPLEMENTAL INDENTURES...................................................................45
Section 12.1. Supplemental Indentures Without Consent Of Securityholders...........................45
Section 12.2. Supplemental Indentures With Consent Of Securityholders..............................46
Section 12.3. Compliance With Trust Indenture Act; Effect Of Supplemental Indentures...............47
Section 12.4. Notation On Securities...............................................................47
Section 12.5. Evidence Of Compliance Of Supplemental Indenture To Be Furnished Trustee.............47
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS...........................47
Section 13.1. Indenture And Securities Solely Corporate Obligations................................47
ARTICLE XIV. MISCELLANEOUS PROVISIONS..................................................................48
Section 14.1. Provisions Binding On Company's Successors...........................................48
Section 14.2. Official Acts By Successor Corporation...............................................48
Section 14.3. Notices..............................................................................48
Section 14.4. Governing Law........................................................................48
Section 14.5. Evidence Of Compliance With Conditions Precedent.....................................49
Section 14.6. Business Days........................................................................50
Section 14.7. Trust Indenture Act To Control.......................................................50
Section 14.8. Table Of Contents, Headings, Etc.....................................................50
Section 14.9. Execution In Counterparts............................................................50
Section 14.10. Manner Of Mailing Notice To Securityholders..........................................50
Section 14.11. Approval By Trustee Of Expert Or Counsel.............................................50
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EXHIBIT A -- Form of Global Security A-1
EXHIBIT B -- Form of Security.....................................................................B-1
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THIS INDENTURE, dated as of July 1, 1999, between NORTHERN STATES POWER
COMPANY, a corporation duly organized and existing under the laws of the
State of Minnesota (the "COMPANY"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States, as trustee (the "TRUSTEE").
WITNESSETH
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (the "SECURITIES"), to be issued as in this
Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are, and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Securities by the Holders thereof and of the sum of one dollar duly paid to
it by the Trustee at the execution of this Indenture, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective Holders from time to
time of the Securities, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. GENERAL. The terms defined in this Article I (except as herein
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Article I.
SECTION 1.2. TRUST INDENTURE ACT. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this Indenture
that are defined by the TIA, defined by the TIA by reference to another
statute or defined by a rule of the Commission under the TIA shall have the
meanings assigned to them in the TIA or such statute or rule as in force on
the date of execution of this Indenture.
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SECTION 1.3. DEFINITIONS. For purposes of this Indenture, the following
terms shall have the following meanings.
AUTHENTICATING AGENT:
The term "AUTHENTICATING AGENT" shall mean any agent of the Trustee which
shall be appointed and acting pursuant to Section 8.15 hereof.
AUTHORIZED AGENT:
The term "AUTHORIZED AGENT" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
BOARD OF DIRECTORS:
The term "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company or the Financing Committee of such Board or any other duly authorized
committee of such Board.
BOARD RESOLUTION:
The term "BOARD RESOLUTION" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions or trust companies
in the Borough of Manhattan, the City and State of New York, or in the city
where the corporate trust office of the Trustee is located, are obligated or
authorized by law or executive order to close.
COMMISSION:
The term "COMMISSION" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body
performing such duties.
COMPANY:
The term "COMPANY" shall mean the corporation named as the "Company" in the
first paragraph of this Indenture, and its successors and assigns permitted
hereunder.
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COMPANY ORDER:
The term "COMPANY ORDER" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President, the
Treasurer or an Assistant Treasurer, and the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar term,
shall mean the corporate trust office of the Trustee, at which at any
particular time its corporate trust business shall be principally
administered, which office is at the date of the execution of this Indenture
located at Corporate Trust Services, Sixth and Marquette Avenue, Minneapolis,
Minnesota 55479-0069.
DEPOSITORY:
The term "DEPOSITORY" shall mean, unless otherwise specified in a Company
Order pursuant to Section 2.5 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered and qualified under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
EVENT OF DEFAULT:
The term "EVENT OF DEFAULT" shall mean any event specified in Section 7.1
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
GLOBAL SECURITY:
The term "GLOBAL SECURITY" shall mean a Security that pursuant to Section 2.5
hereof is issued to evidence Securities, that is delivered to the Depository
or pursuant to the instructions of the Depository and that shall be
registered in the name of the Depository or its nominee.
INDENTURE:
The term "INDENTURE" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
INTEREST PAYMENT DATE:
The term "INTEREST PAYMENT DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5 hereof, (a) each May 1 and November 1
during the period any Security is outstanding (provided that the first
Interest Payment Date for any Security, the Original Issue Date of which is
after a Regular Record Date but prior to the respective Interest Payment
Date, shall be the Interest Payment Date following the next succeeding
Regular Record Date), (b) a date of maturity of such Security and (c) only
with respect to defaulted interest on such Security,
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the date established by the Trustee for the payment of such defaulted
interest pursuant to Section 2.11 hereof.
MATURITY:
The term "MATURITY," when used with respect to any Security, shall mean the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the stated maturity thereof or by
declaration of acceleration, redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "OFFICERS' CERTIFICATE" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President, the Treasurer or an Assistant Treasurer, and by the Secretary or
an Assistant Secretary of the Company.
OPINION OF COUNSEL:
The term "OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who may be an employee of the Company, meeting the applicable
requirements of Section 14.5 hereof. If the Indenture requires the delivery
of an Opinion of Counsel to the Trustee, the text and substance of which has
been previously delivered to the Trustee, the Company may satisfy such
requirement by the delivery by the legal counsel that delivered such previous
Opinion of Counsel of a letter to the Trustee to the effect that the Trustee
may rely on such previous Opinion of Counsel as if such Opinion of Counsel
was dated and delivered the date delivery of such Opinion of Counsel is
required. Any Opinion of Counsel may contain conditions and qualifications
satisfactory to the Trustee.
OPINION OF INDEPENDENT COUNSEL:
The term "OPINION OF INDEPENDENT COUNSEL" shall mean an opinion in writing
signed by legal counsel, who shall not be an employee of the Company, meeting
the applicable requirements of Section 14.5. Any Opinion of Independent
Counsel may contain conditions and qualifications satisfactory to the Trustee.
ORIGINAL ISSUE DATE:
The term "ORIGINAL ISSUE DATE" shall mean for a Security, or portions
thereof, the date upon which it, or such portion, was issued by the Company
pursuant to this Indenture and authenticated by the Trustee (other than in
connection with a transfer, exchange or substitution).
OUTSTANDING:
The term "OUTSTANDING", when used with reference to Securities, shall,
subject to Section 9.4 hereof, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
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(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company), provided
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as provided in Article III,
or provisions satisfactory to the Trustee shall have been made for giving
such notice;
(c) Securities, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged pursuant to the
provisions of this Indenture; and
(d) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered, or which have been
paid, pursuant to Section 2.7 hereof.
PERSON:
The term "PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agent or political
subdivision thereof.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 414 Nicollet
Mall, Minneapolis, Minnesota 55401, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
REGULAR RECORD DATE:
The term "REGULAR RECORD DATE" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.5, for an Interest Payment Date for a
particular Security (a) the fifteenth day of the calendar month next
preceding each Interest Payment Date (unless the Interest Payment Date is the
date of maturity of such Security, in which event, the Regular Record Date
shall be as described in clause (b) hereof) and (b) the date of maturity of
such Security.
RESPONSIBLE OFFICER:
The term "RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used with
respect to the Trustee shall mean one or more of the following: the chairman
of the board of directors, the vice chairman of the board of directors, the
chairman of the executive committee, the president, any vice president, the
secretary, the treasurer, any trust officer, any assistant trust officer, any
second or assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by
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the persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
SECURITY OR SECURITIES:
The terms "SECURITY" or "SECURITIES" shall mean any debt security or debt
securities, as the case may be, authenticated and delivered under this
Indenture, including any Global Security.
SECURITYHOLDER:
The terms "SECURITYHOLDER", "HOLDER OF SECURITIES" or "HOLDER" shall mean any
Person in whose name at the time a particular Security is registered on the
books of the Trustee kept for that purpose in accordance with the terms
hereof.
SPECIAL RECORD DATE:
The term "SPECIAL RECORD DATE" shall mean, with respect to any Security, the
date established by the Trustee in connection with the payment of defaulted
interest on such Security pursuant to Section 2.11 hereof.
STATED MATURITY:
The term "STATED MATURITY" shall mean with respect to any Security, the last
date on which principal on such Security becomes due and payable as therein
or herein provided, other than by declaration of acceleration or by
redemption.
TRUSTEE:
The term "TRUSTEE" shall mean Norwest Bank Minnesota, National Association
and, subject to Article VIII, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-callable
obligations of, or non-callable obligations guaranteed as to timely payment
of principal and interest by, the United States of America or an agency
thereof for the payment of which obligations or guarantee the full faith and
credit of the United States is pledged or (ii) certificates or receipts
representing direct ownership interests in obligations or specified portions
(such as principal or interest) of obligations described in clause (i) above,
which obligations are held by a custodian in safekeeping in a manner
satisfactory to the Trustee.
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ARTICLE II.
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
SECTION 2.1. FORM GENERALLY.
(a) If the Securities are in the form of a Global Security they
shall be in substantially the form set forth in EXHIBIT A to this Indenture,
and, if the Securities are not in the form of a Global Security, they shall
be in substantially the form set forth in EXHIBIT B to this Indenture, or, in
any case, in such other form as shall be established by a Board Resolution,
or a Company Order pursuant to a Board Resolution, or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with applicable rules of any securities exchange or
of the Depository or with applicable law or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
(b) The definitive Securities shall be typed, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
Trustee's Certificate of Authentication
This Security is one of the Securities of the series herein designated,
described or provided for in the within-mentioned Indenture.
Norwest Bank Minnesota, National Association, AS
TRUSTEE
By:
---------------------------------------
AUTHORIZED OFFICER
SECTION 2.3. AMOUNT UNLIMITED. The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited,
subject to compliance with the provisions of this Indenture.
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SECTION 2.4. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Securities shall be issuable in registered form without
coupons in denominations of $1,000 and integral multiples thereof or such
other amount or amounts as may be authorized by the Board of Directors or a
Company Order pursuant to a Board Resolution or in one or more indentures
supplemental hereto; provided that the principal amount of a Global Security
shall not exceed $200,000,000 unless otherwise permitted by the Depository.
(b) Each Security shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.13(e) hereof, two or more Original Issue Dates; each
Security issued upon transfer, exchange or substitution of a Security shall
bear the Original Issue Date or Dates of such transferred, exchanged or
substituted Security, subject to the provisions of Section 2.13(e) hereof.
(c) Each Security shall bear interest from the later of (1) its
Original Issue Date (or, if pursuant to Section 2.13 hereof, a Global
Security has two or more Original Issue Dates, interest shall, beginning on
each such Original Issue Date, begin to accrue for that part of the principal
amount of such Global Security to which that Original Issue Date is
applicable), or (2) the most recent date to which interest has been paid or
duly provided for with respect to such Security until the principal of such
Security is paid or made available for payment, and interest on each Security
shall be payable on each Interest Payment Date after the Original Issue Date.
(d) Each Security shall mature on a stated maturity specified in
the Security. The principal amount of each outstanding Security shall be
payable on the maturity date or dates specified therein.
(e) Unless otherwise specified in a Company Order pursuant to
Section 2.5 hereof, interest on each of the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months and shall be computed at
a fixed rate until the maturity of such Securities. The method of computing
interest on any Securities not bearing a fixed rate of interest shall be set
forth in a Company Order pursuant to Section 2.5 hereof. Unless otherwise
specified in a Company Order pursuant to Section 2.5 hereof, principal,
interest and premium on the Securities shall be payable in the currency of
the United States.
(f) Except as provided in the following sentence, the Person in
whose name any Security is registered at the close of business on any Regular
Record Date or Special Record Date with respect to an Interest Payment Date
for such Security shall be entitled to receive the interest payable on such
Interest Payment Date notwithstanding the cancellation of such Security upon
any registration of transfer, exchange or substitution of such Security
subsequent to such Regular Record Date or Special Record Date and prior to
such Interest Payment Date. Any interest payable at maturity shall be paid
to the Person to whom the principal of such Security is payable.
(g) The Trustee (or any duly selected paying agent) shall provide
to the Company during each month that precedes an Interest Payment Date a
list of the principal, interest and
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premium to be paid on Securities on such Interest Payment Date; provided,
however, that any failure to receive such notice shall not relieve the
Company of its obligation to pay the principal, interest and premium on the
Securities when due. The Trustee shall assume responsibility for withholding
taxes on interest paid as required by law except with respect to any Global
Security.
SECTION 2.5. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Securities shall be executed on behalf of the Company by
one of its Chairman, President, any Vice President, its Treasurer or an
Assistant Treasurer of the Company and attested by the Secretary or an
Assistant Secretary of the Company. The signature of any of these officers
on the Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with or preceded by
one or more Company Orders for the authentication and delivery of such
Securities, and the Trustee in accordance with any such Company Order shall
authenticate and deliver such Securities. The Securities shall be issued in
series. Such Company Order shall specify the following with respect to each
series of Securities: (i) any limitations on the aggregate principal amount
of the Securities to be issued as part of such series, (ii) the Original
Issue Date or Dates for such series, (iii) the stated maturity of such
series, (iv) the interest rate or rates, or method of calculation of such
rate or rates, for such series, (v) the terms, if any, regarding the optional
or mandatory redemption of such series, including redemption date or dates of
such series, if any, and the price or prices applicable to such redemption
(including any premium), (vi) the period or periods within which, the price
or prices at which and the terms and conditions upon which such Securities
may be repaid, in whole or in part, at the option of the Holder thereof,
(vii) whether or not the Securities of such series shall be issued in whole
or in part in the form of a Global Security and, if so, the Depository for
such Global Security, (viii) the designation of such series, (ix) if the form
of the Securities of such series is not as described in EXHIBIT A OR EXHIBIT
B hereto, the form of the Securities of such series, (x) the maximum annual
interest rate, if any, of the Securities permitted for such series, (xi) any
other information necessary to complete the Securities of such series, (xii)
the establishment of any office or agency pursuant to Section 5.2 hereof, and
(xiii) any other terms of such series not inconsistent with this Indenture.
Prior to authenticating Securities of any series, and in accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall receive from the Company the following at or
before the issuance of the initial Security of such series of Securities, and
(subject to Section 8.1 hereof) shall be fully protected in relying upon:
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(1) A Board Resolution authorizing such Company Order or Orders and, if
the form of Securities is established by a Board Resolution or a Company
Order pursuant to a Board Resolution, a copy of such Board Resolution;
(2) an Opinion of Counsel stating substantially the following subject
to customary qualifications and exceptions:
(A) if the form of Securities has been established by or pursuant to
a Board Resolution, a Company Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section 2.1 hereof, that such form
has been established in conformity with this Indenture;
(B) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws of general application relating to or affecting the enforcement of
creditors and the application of general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity) and except as enforcement of provisions of the Indenture may
be limited by state laws affecting the remedies for the enforcement of
the security provided for in the Indenture;
(C) that the Indenture is qualified to the extent necessary under
the TIA;
(D) that such Securities have been duly authorized and executed by
the Company, and when authenticated by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application relating to or affecting the enforcement of creditors and
the application of general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except as
enforcement of provisions of this Indenture may be limited by state laws
affecting the remedies for the enforcement of the security provided for
in this Indenture;
(E) that the issuance of the Securities will not result in any
default under this Indenture, or any other contract, indenture, loan
agreement or other instrument to which the Company is a party or by
which it or any of its property is bound; and
(F) that all consents or approvals of the Minnesota Public
Utilities Commission (or any successor agency) and of any other federal
or state regulatory agency required in connection with the Company's
execution and delivery of this Indenture and such series of Securities
have been obtained and not withdrawn (except that no statement need be
made with respect to state securities laws).
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(3) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Securities, will not
be in default under any of the terms or covenants contained in the Indenture,
and (ii) all conditions that must be met by the Company to issue Securities
under this Indenture have been met.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Security:
(1) if the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee;
(2) if the Trustee, being advised by counsel, determines that such
action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors, executive
officers or a trust committee of directors and/or responsible officers
determines that such action would expose the Trustee to personal liability to
Holders of any outstanding Securities.
(e) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by the manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
(f) If all Securities of a series are not to be authenticated and
issued at one time, the Company shall not be required to deliver the Company
Order, Board Resolutions, Officers' Certificate and Opinion of Counsel
(including any such that would be otherwise required pursuant to Section 14.5
hereof) described in Section 2.5(c) hereof at or prior to the authentication
of each Security of such series, if such items are delivered at or prior to
the time of authentication of the first Security of such series to be
authenticated and issued. If all of the Securities of a series are not
authenticated and issued at one time, for each issuance of Securities after
the initial issuance of Securities, the Company shall be required only to
deliver to the Trustee the Security and a written request (executed by one of
the Chairman, the President, any Vice President, the Treasurer, or an
Assistant Treasurer, and the Secretary or an Assistant Secretary of the
Company) to the Trustee to authenticate such Security and to deliver such
Security in accordance with the instructions specified by such request. Any
such request shall constitute a representation and warranty by the Company
that the statements made in the Officers' Certificate delivered to the
Trustee prior to the authentication and issuance of the first Security of
such series are true and correct on the date thereof as if made on and as of
the date thereof.
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SECTION 2.6. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.
(a) Subject to Section 2.13 hereof, Securities may be exchanged
for one or more new Securities of any authorized denominations and of a like
aggregate principal amount, series and stated maturity and having the same
terms and Original Issue Date or Dates. Securities to be exchanged shall be
surrendered at any of the offices or agencies to be maintained pursuant to
Section 5.2 hereof, and the Trustee shall deliver in exchange therefor the
Security or Securities which the Securityholder making the exchange shall be
entitled to receive.
(b) The Trustee shall keep, at one of said offices or agencies, a
register or registers in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall register or cause to be registered
Securities and shall register or cause to be registered the transfer of
Securities as in this Article II provided. Such register shall be in written
form or in any other form capable of being converted into written form within
a reasonable time. At all reasonable times, such register shall be open for
inspection by the Company. Upon due presentment for registration of transfer
of any Security at any such office or agency, the Company shall execute and
the Trustee shall register, authenticate and deliver in the name of the
transferee or transferees one or more new Securities of any authorized
denominations and of a like aggregate principal amount, series and stated
maturity and having the same terms and Original Issue Date or Dates.
(c) All Securities presented for registration of transfer or for
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to
the Company and the Trustee and duly executed by the Holder or the attorney
in fact of such Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
(e) The Trustee shall not be required to exchange or register a
transfer of any Securities selected, called or being called for redemption
(including Securities, if any, redeemable at the option of the Holder
provided such Securities are then redeemable at such Holder's option) except,
in the case of any Security to be redeemed in part, the portion thereof not
to be so redeemed.
(f) If the principal amount, and applicable premium, of part, but
not all of a Global Security is paid, then upon surrender to the Trustee of
such Global Security, the Company shall execute, and the Trustee shall
authenticate, deliver and register, a Global Security in an authorized
denomination in aggregate principal amount equal to, and having the same
terms, Original Issue Date or Dates and series as, the unpaid portion of such
Global Security.
SECTION 2.7. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
(a) If any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company shall execute, and upon its
request the Trustee shall authenticate and
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deliver, a new Security of like form and principal amount and having the same
terms and Original Issue Date or Dates and bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company, the Trustee and any paying agent or Authenticating
Agent such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft of a
Security, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
(b) The Trustee shall authenticate any such substituted Security
and deliver the same upon the written request or authorization of any officer
of the Company. Upon the issuance of any substituted Security, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. If any Security which has matured, is about to
mature, has been redeemed or called for redemption shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company, the Trustee and any
paying agent or Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
(c) Every substituted Security issued pursuant to this Section 2.7
by virtue of the fact that any Security is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not such destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.8. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities, the Company may execute and the Trustee shall authenticate and
deliver temporary Securities (printed, lithographed or otherwise reproduced).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every such temporary
Security shall be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
deliver to the Trustee definitive Securities and thereupon any or all
temporary Securities shall be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate,
deliver and register in exchange for such temporary Securities an equal
aggregate
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principal amount of definitive Securities. Such exchange shall be made by
the Company at its own expense and without any charge therefor to the
Securityholders. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities authenticated and delivered hereunder.
SECTION 2.9. CANCELLATION OF SECURITIES PAID, ETC. All Securities
surrendered for the purpose of payment, redemption, exchange or registration
of transfer shall be surrendered to the Trustee for cancellation and promptly
canceled by it and no Securities shall be issued in lieu thereof except as
expressly permitted by this Indenture. The Company's acquisition of any
Securities shall operate as a redemption or satisfaction of the indebtedness
represented by such Securities and such Securities shall be surrendered by
the Company to and canceled by the Trustee.
SECTION 2.10. INTEREST RIGHTS PRESERVED. Each Security delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other
Security shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security, and each such Security
shall be so dated that neither gain nor loss of interest shall result from
such transfer, exchange or substitution.
SECTION 2.11. SPECIAL RECORD DATE. If and to the extent that the Company
fails to make timely payment or provision for timely payment of interest on
any series of Securities (other than on an Interest Payment Date that is a
maturity date), that interest shall cease to be payable to the Persons who
were the Securityholders of such series at the applicable Regular Record
Date. In that event, when moneys become available for payment of the
interest, the Trustee shall (a) establish a date of payment of such interest
and a Special Record Date for the payment of that interest, which Special
Record Date shall be not more than 15 or fewer than 10 days prior to the date
of the proposed payment and (b) mail notice of the date of payment and of the
Special Record Date not fewer than 10 days preceding the Special Record Date
to each Securityholder of such series at the close of business on the 15th
day preceding the mailing at the address of such Securityholder, as it
appeared on the register for the Securities. On the day so established by
the Trustee the interest shall be payable to the Holders of the applicable
Securities at the close of business on the Special Record Date.
SECTION 2.12. PAYMENT OF SECURITIES. Payment of the principal, interest and
premium on all Securities shall be payable as follows:
(a) On or before 11:30 a.m., New York City time, of the day on
which payment of principal, interest and premium is due on any Global
Security pursuant to the terms thereof, the Company shall deliver to the
Trustee funds available on such date sufficient to make such payment, by wire
transfer of immediately available funds or by instructing the Trustee to
withdraw sufficient funds from an account maintained by the Company with the
Trustee or such other method as is acceptable to the Trustee and the
Depository. On or before Noon, New York City time, or such other time as
shall be agreed upon between the Trustee and the Depository, of the day on
which any payment of interest is due on any Global Security (other than at
maturity) and following receipt of the necessary funds from the Company, the
Trustee shall pay to the Depository such interest in same day funds. On or
before Noon, New York City time or such
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other time as shall be agreed upon between the Trustee and the Depository, of
the day on which principal, interest payable at maturity and premium, if any,
is due on any Global Security and following receipt of the necessary funds
from the Company, the Trustee shall deposit with the Depository the amount
equal to the principal, interest payable at maturity and premium, if any, by
wire transfer into the account specified by the Depository. As a condition
to the payment, at maturity or upon redemption, of any part of the principal
of, interest on and applicable premium of any Global Security, the Depository
shall surrender, or cause to be surrendered, such Global Security to the
Trustee, whereupon a new Global Security shall be issued to the Depository
pursuant to Section 2.6(f) hereof.
(b) With respect to any Security that is not a Global Security,
principal, applicable premium and interest due at the maturity of the
Security shall be payable in immediately available funds when due upon
presentation and surrender of such Security at the corporate trust office of
the Trustee or at the authorized office of any paying agent. Interest on any
Security that is not a Global Security (other than interest payable at
maturity) shall be paid to the Holder thereof as its name appears on the
register by check payable in clearinghouse funds; provided that if the
Trustee receives a written request from any Holder of Securities, the
aggregate principal amount of which having the same Interest Payment Date
equals or exceeds $10,000,000, on or before the applicable Regular Record
Date for such Interest Payment Date, interest shall be paid by wire transfer
of immediately available funds to a bank within the continental United States
designated by such Holder in its request or by direct deposit into the
account of such Holder designated by such Holder in its request if such
account is maintained with the Trustee or any paying agent.
SECTION 2.13. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Section 2.5 hereof
that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 2.5 hereof and the
Company Order delivered to the Trustee thereunder, authenticate and deliver
such Global Security or Securities, which (i) shall represent, shall be
denominated in an amount equal to the aggregate principal amount of, and
shall have the same terms as, the outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be registered
in the name of the Depository or its nominee, (iii) shall be delivered by the
Trustee to the Depository or pursuant to the Depository's instruction and
(iv) shall bear a legend substantially to the following effect: "This
Security is a Global Security registered in the name of the Depository
(referred to herein) or a nominee thereof and, unless and until it is
exchanged in whole or in part for the individual Securities represented
hereby, this Global Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this Global Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York), to the trustee for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and
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any payment is made to Cede & Co., any transfer, pledge or other use hereof
for value or otherwise by or to any person is wrongful since the registered
owner hereof, Cede & Co., has an interest herein" or such other legend as may
be required by the rules and regulations of the Depository.
(b) Notwithstanding any other provision of Section 2.6 hereof or
of this Section 2.13, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in part,
only as described in the legend thereto.
(c) (i) If at any time the Depository for a Global Security
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Security or if at any time the Depository for the Global
Security shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
the Company shall appoint a successor Depository with respect to such Global
Security. If a successor Depository for such Global Security is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 2.5(c)(vi) hereof shall no longer be effective with
respect to the series of Securities evidenced by such Global Security and the
Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Securities of such series in
exchange for such Global Security, shall authenticate and deliver, individual
Securities of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. The Trustee shall not be
charged with knowledge or notice of the ineligibility of a Depository unless
a responsible officer assigned to and working in its corporate trustee
administration department shall have actual knowledge thereof.
(ii) The Company may at any time and in its sole discretion
determine that all outstanding (but not less than all) Securities of a series
issued or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Securities in exchange for
such Global Security, shall authenticate and deliver individual Securities of
like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Securities in
exchange for such Global Security or Securities.
(iii) In any exchange provided for in any of the preceding
two paragraphs, the Company will execute and the Trustee will authenticate
and deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Depository for delivery to the
persons in whose names such Securities are so registered, or if the
Depository shall refuse or be unable to deliver such
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Securities, the Trustee shall deliver such Securities to the persons in whose
names such Securities are registered, unless otherwise agreed upon between
the Trustee and the Company, in which event the Company shall cause the
Securities to be delivered to the persons in whose names such Securities are
registered.
(d) Neither the Company, the Trustee, any Authenticating Agent nor
any paying agent shall have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interest.
(e) Pursuant to the provisions of this subsection, at the option
of the Trustee and upon 30 days' written notice to the Depository but not
prior to the first Interest Payment Date of the respective Global Securities,
the Depository shall be required to surrender any two or more Global
Securities which have identical terms, including, without limitation,
identical maturities, interest rates and redemption provisions (but which may
have differing Original Issue Dates) to the Trustee, and the Company shall
execute and the Trustee shall authenticate and deliver to, or at the
direction of, the Depository a Global Security in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the
Global Securities surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be
consummated at least 30 days prior to any Interest Payment Date applicable to
any of the Global Securities surrendered to the Trustee. Upon any exchange
of any Global Security with two or more Original Issue Dates, whether
pursuant to this Section or pursuant to Section 2.6 or Section 3.3 hereof,
the aggregate principal amount of the Securities with a particular Original
Issue Date shall be the same before and after such exchange, after giving
effect to any retirement of Securities and the Original Issue Dates
applicable to such Securities occurring in connection with such exchange.
ARTICLE III.
REDEMPTION OF SECURITIES
SECTION 3.1. APPLICABILITY OF ARTICLE. Such of the Securities as are, by
their terms, redeemable prior to their stated maturity date at the option of
the Company, may be redeemed by the Company at such times, in such amounts
and at such prices as may be specified therein and in accordance with the
provisions of this Article III.
SECTION 3.2. NOTICE OF REDEMPTION; SELECTION OF SECURITIES.
(a) The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution which shall be given with notice of
redemption to the Trustee at least 45 days (or such shorter period acceptable
to the Trustee in its sole discretion) prior to the redemption date specified
in such notice.
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(b) Notice of redemption to each Holder of Securities to be
redeemed as a whole or in part shall be given by the Trustee, in the manner
provided in Section 14.10 hereof, no less than 30 or more than 60 days prior
to the date fixed for redemption. Any notice which is given in the manner
herein provided shall be conclusively presumed to have been duly given,
whether or not the Securityholder receives the notice. In any case, failure
duly to give such notice, or any defect in such notice, to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
(c) Each such notice shall specify the date fixed for redemption,
the places of redemption and the redemption price at which such Securities
are to be redeemed, and shall state that payment of the redemption price of
such Securities or portion thereof to be redeemed will be made upon surrender
of such Securities at such places of redemption, that interest accrued to the
date fixed for redemption will be paid as specified in such notice, and that
from and after such date interest thereon shall cease to accrue. If less
than all of a series of Securities having the same terms are to be redeemed,
the notice shall specify the Securities or portions thereof to be redeemed.
If any Security is to be redeemed in part only, the notice which relates to
such Security shall state the portion of the principal amount thereof to be
redeemed, and shall state that, upon surrender of such Security, a new
Security or Securities having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a supplemental indenture or
Company Order under Section 2.5 hereof, if less than all of a series of
Securities is to be redeemed, the Trustee shall select in such manner as it
shall deem appropriate and fair in its discretion the particular Securities
to be redeemed in whole or in part and shall thereafter promptly notify the
Company in writing of the Securities so to be redeemed. If less than all of
a series of Securities represented by a Global Security is to be redeemed,
the particular Securities or portions thereof of such series to be redeemed
shall be selected by the Depository for such series of Securities in such
manner as the Depository shall determine. Securities shall be redeemed only
in denominations of $1,000, provided that any remaining principal amount of a
Security redeemed in part shall be a denomination authorized under this
Indenture.
(e) If at the time of the mailing of any notice of redemption the
Company shall not have irrevocably directed the Trustee to apply funds
deposited with the Trustee or held by it and available to be used for the
redemption of Securities to redeem all the Securities called for redemption,
such notice, at the election of the Company, may state that it is subject to
the receipt of the redemption moneys by the Trustee before the date fixed for
redemption and that such notice shall be of no effect unless such moneys are
so received before such date.
SECTION 3.3. PAYMENT OF SECURITIES ON REDEMPTION; DEPOSIT OF REDEMPTION PRICE.
(a) If notice of redemption for any Securities shall have been
given as provided in Section 3.2 hereof and such notice shall not contain the
language permitted at the Company's option under Section 3.2(e) hereof, such
Securities or portions of Securities called for redemption shall become due
and payable on the date and at the places stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption of such
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Securities. Interest on the Securities or portions thereof so called for
redemption shall cease to accrue and such Securities or portions thereof
shall be deemed not to be entitled to any benefit under this Indenture except
to receive payment of the redemption price together with interest accrued
thereon to the date fixed for redemption. Upon presentation and surrender of
such Securities at such a place of payment in such notice specified, such
Securities or the specified portions thereof shall be paid and redeemed at
the applicable redemption price, together with interest accrued thereon to
the date fixed for redemption.
(b) If notice of redemption shall have been given as provided in
Section 3.2 hereof and such notice shall contain the language permitted at
the Company's option under Section 3.2(e) hereof, such Securities or portions
of Securities called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption of such
Securities, and interest on the Securities or portions thereof so called for
redemption shall cease to accrue and such Securities or portions thereof
shall be deemed not to be entitled to any benefit under this Indenture except
to receive payment of the redemption price together with interest accrued
thereon to the date fixed for redemption; provided that, in each case, the
Company shall have deposited with the Trustee or a paying agent on or prior
to such redemption date an amount sufficient to pay the redemption price
together with interest accrued to the date fixed for redemption. Upon the
Company making such deposit and, upon presentation and surrender of such
Securities at such a place of payment in such notice specified, such
Securities or the specified portions thereof shall be paid and redeemed at
the applicable redemption price, together with interest accrued thereon to
the date fixed for redemption. If the Company shall not make such deposit on
or prior to the redemption date, the notice of redemption shall be of no
force and effect and the principal on such Securities or specified portions
thereof shall continue to bear interest as if the notice of redemption had
not been given.
(c) No notice of redemption of Securities shall be mailed during
the continuance of any Event of Default, except (1) that, when notice of
redemption of any Securities has been mailed, the Company shall redeem such
Securities but only if funds sufficient for that purpose have prior to the
occurrence of such Event of Default been deposited with the Trustee or a
paying agent for such purpose, and (2) that notices of redemption of all
outstanding Securities may be given during the continuance of an Event of
Default.
(d) Upon surrender of any Security redeemed in part only, the
Company shall execute, and the Trustee shall authenticate, deliver and
register, a new Security or Securities of authorized denominations in
aggregate principal amount equal to, and having the same terms, Original
Issue Date or Dates and series as, the unredeemed portion of the Security so
surrendered.
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ARTICLE IV.
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 4.1. SATISFACTION AND DISCHARGE. If at any time:
(a) the Company shall have paid or caused to be paid the principal
of and premium, if any, and interest on all the outstanding Securities, as
and when the same shall have become due and payable,
(b) the Company shall have delivered to the Trustee for
cancellation all outstanding Securities, or
(c) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds the entire amount in
(A) cash, (B) U.S. Government Obligations maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash, or (C) a combination of cash and U.S. Government Obligations, in any
case sufficient, without reinvestment, as certified by an independent public
accounting firm of national reputation in a written certification delivered
to the Trustee, to pay at maturity or the applicable redemption date
(provided that notice of redemption shall have been duly given or irrevocable
provision satisfactory to the Trustee shall have been duly made for the
giving of any notice of redemption) all outstanding Securities, including
principal and any premium and interest due or to become due to such date of
maturity, as the case may be and, unless all outstanding Securities are to be
due within 90 days of such deposit by redemption or otherwise, shall also
deliver to the Trustee an Opinion of Independent Counsel to the effect that
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or similar pronouncement by the Internal Revenue
Service or that there has been a change of law, in either case to the effect
that the Holders of the Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance or discharge
of the Indenture, and if, in any such case, the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof, and any premium and
interest thereon, upon the original stated due dates therefor or upon the
applicable redemption date (but not upon acceleration of maturity) from the
moneys and U.S. Government Obligations held by the Trustee pursuant to
Section 4.2 hereof, (iv) the rights and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them, (vi) the obligations and rights of the Trustee and the Company under
Section 4.4 hereof, and (vii) the duties of the Trustee with respect to any
of the foregoing), and the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and its obligations under,
the Securities, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging such
satisfaction of
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and discharging this Indenture and the Trustee shall at the request of the
Company return to the Company all property and money held by it under this
Indenture and determined by it from time to time in accordance with the
certification pursuant to this Section 4.1(c) to be in excess of the amount
required to be held under this Section.
If the Securities are deemed to be paid and discharged pursuant to
Section 4.1(c) hereof, within 15 days after those Securities are so deemed to
be paid and discharged, the Trustee shall cause a written notice to be given
to each Holder in the manner provided by Section 14.10 hereof. The notice
shall:
(i) state that the Securities are deemed to be paid and discharged;
(ii) set forth a description of any U.S. Government Obligations and
cash held by the Trustee as described above; and
(iii) if any Securities will be called for redemption, specify the
date or dates on which those Securities are to be called for redemption.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.6 hereof, shall
survive.
SECTION 4.2. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys
and U.S. Government Obligations deposited with the Trustee pursuant to
Section 4.1 hereof, shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Company if acting
as its own paying agent), to the Holders of the particular Securities for the
payment or redemption of which such moneys and U.S. Government Obligations
have been deposited with the Trustee of all sums due and to become due
thereon for principal and premium, if any, and interest.
SECTION 4.3. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent for the
Securities (other than the Trustee) shall, upon written demand by an
Authorized Agent, be repaid to the Company or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 4.4. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid
to the Trustee for payment of the principal of or any premium or interest on
any Securities and not applied but remaining unclaimed by the Holders of such
Securities for two years after the date upon which the principal of or any
premium or interest on such Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on written
demand by an Authorized Agent, and all liability of the Trustee shall
thereupon cease; and any Holder of any of such Securities shall thereafter
look only to the Company for any payment which such Holder may be entitled to
collect.
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ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Securities that it
will duly and punctually pay or cause to be paid the principal of and any
premium and interest on each of the Securities at the places, at the
respective times and in the manner provided in such Securities or in this
Indenture.
SECTION 5.2. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of the
Securities remain outstanding, the Company at its option may cause to be
maintained in the Borough of Manhattan, the City and State of New York, or
elsewhere, an office or agency where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and
where, at any time when the Company is obligated to make a payment of
principal and premium upon Securities, the Securities may be surrendered for
payment, and may maintain at any such office or agency and at its principal
office an office or agency where notices and demands to or upon the Company
in respect of the Securities or of this Indenture may be served. The
designation of any such office or agency shall be made by Company Order
pursuant to Section 2.5 hereof or at any subsequent time pursuant to this
Section 5.2 hereof. The Company will give to the Trustee written notice of
the location of each such office or agency and of any change of location
thereof. If the Company shall fail to give such notice of the location or of
any change in the location of any such office or agency, presentations may be
made and notices and demands may be served at the corporate trust office of
the Trustee.
SECTION 5.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.11 hereof, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.4. PROVISION AS TO PAYING AGENT. The Trustee shall be the paying
agent for the Securities and, at the option of the Company, the Company may
appoint additional paying agents (including without limitation itself).
Whenever the Company shall appoint an additional paying agent, it shall cause
such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to this Section 5.4:
(1) that it will hold in trust for the benefit of the Holders and the
Trustee all sums held by it as such agent for the payment of the principal
of and any premium or interest on the Securities (whether such sums have
been paid to it by the Company or by any other obligor on such Securities)
in trust for the benefit of the Holders of such Securities;
(2) that it will give to the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any payment
of the principal of and any premium or interest on such Securities when
the same shall be due and payable; and
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(3) that it will at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent with respect to any
Securities, it will, on or before each due date of the principal of and any
premium or interest on such Securities, set aside, segregate and hold in
trust for the benefit of the Holders of such Securities a sum sufficient to
pay such principal and any premium or interest so becoming due and will
notify the Trustee of any failure by it to take such action and of any
failure by the Company (or by any other obligor on such Securities) to make
any payment of the principal of and any premium or interest on such
Securities when the same shall become due and payable.
Whenever the Company shall have one or more paying agents, it will, on
or prior to each due date of the principal of (and premium, if any) or
interest, if any, on any Securities, deposit with such paying agent a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, if any, and (unless such
paying agent is the Trustee) the Company shall promptly notify the Trustee of
any failure on its part to so act.
Anything in this Section 5.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.4, such sums to be held by the Trustee upon the
trusts herein contained.
Anything in this Section 5.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.4 is subject to
Sections 4.3 and 4.4 hereof.
SECTION 5.5. CERTIFICATES AND NOTICE TO TRUSTEE. The Company shall, on or
before May 1 of each year, beginning in 2000, deliver to the Trustee a
certificate from its principal executive officer, principal financial officer
or principal accounting officer covering the preceding calendar year and
stating whether or not, to the knowledge of such party, the Company has
complied with all conditions and covenants under this Indenture, and, if not,
describing in reasonable detail any failure by the Company to comply with any
such conditions or covenants. For purposes of this Section, compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
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ARTICLE VI.
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. SECURITYHOLDER LISTS.
(a) The Company shall furnish or cause to be furnished to the
Trustee semiannually, not later than 15 days after each Regular Record Date
for each Interest Payment Date that is not a maturity date and at such other
times as such Trustee may request in writing, within 30 days after receipt by
the Company of any such request, a list in such form as the Trustee may
reasonably require containing all the information in the possession or
control of the Company, or any paying agents other than the Trustee, as to
the names and addresses of the Holders of Securities, obtained since the date
as of which the next previous list, if any, was furnished. Any such list may
be dated as of a date not more than 15 days prior to the time such
information is furnished or caused to be furnished and need not include
information received after such date; provided that as long as the Trustee is
the registrar for the Securities, no such list shall be required to be
furnished. The Trustee shall preserve any list provided to it pursuant to
this Section until such time as the Company or any paying agent, as
applicable, shall provide it with a more recent list.
(b) Within five business days after the receipt by the Trustee of
a written application by any three or more Holders stating that the
applicants desire to communicate with other Holders with respect to their
rights under the Indenture or under the Securities, and accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, and by reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, the Trustee shall, at its election, either:
(i) afford to such applicants access to all information furnished
to or received by the Trustee pursuant to Section 6.1(a) hereof or, if
applicable, in its capacity as registrar to the Securities; or
(ii) inform such applicants as to the approximate number of Holders
according to the most recent information furnished to or received by the
Trustee under Section 6.1(a) hereof or if applicable in its capacity as
registrar for the Securities, and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing, unless
within five days after such tender the Trustee shall mail to such applicants
and file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders
or would be in
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violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of a Security, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent nor any Authenticating Agent shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with this Section,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under this Section.
SECTION 6.2. SECURITIES AND EXCHANGE COMMISSION REPORTS.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations, including, in the
case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to the
requirements of Section 14.5, as to compliance with conditions or covenants,
compliance with which is subject to verification by accountants; and
(c) transmit by mail to all Holders, as their names and addresses
appear in the register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs
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(a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 6.3. REPORTS BY THE TRUSTEE.
(a) Within 60 days after July 15 of each year, beginning with the
July 15 after the first issuance of Securities hereunder, the Trustee shall
transmit by mail a brief report dated as of such date that complies with
Section 313(a) of the TIA (to the extent required by such Section).
(b) The Trustee shall from time to time transmit by mail brief
reports that comply, both in content and date of delivery, with Section
313(b) of the TIA (to the extent required by such Section).
(c) A copy of each such report filed pursuant to this section
shall, at the time of such transmission to such Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed and
also with the Commission. The Company will notify the Trustee promptly upon
the listing of such Securities on any stock exchange.
(d) Reports pursuant to this Section shall be transmitted
(1) by mail to all Holders of Securities, as their names and
addresses appear in the register for the Securities;
(2) by mail to such Holders of Securities as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for such purpose;
(3) by mail, except in the case of reports pursuant to Section
6.3(b) and (c) hereof, to all Holders of Securities whose names and
addresses have been furnished to or received by the Trustee pursuant to
Section 6.1 hereof; and
(4) at the time such report is transmitted to the Holders of the
Securities, to each exchange on which Securities are listed and also
with the Commission.
ARTICLE VII.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default shall have
occurred and be continuing:
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(1) default in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and payable,
and continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or any premium on
any of the Securities as and when the same shall become due and payable
and continuance of such default for five days;
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company
contained in the Securities or in this Indenture for a period of 90 days
after the date on which written notice of such failure, requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the Trustee
by registered mail, or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities at the time
outstanding;
(4) the entry of a decree or order by a court having jurisdiction
over the Company for relief in respect of the Company under Title 11 of
the United States Code, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Company or of any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(5) the filing by the Company with respect to itself or its
property of a petition or answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or other
similar law, or the consent by it to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Company or of
any substantial part of its property, or the failure of the Company
generally to pay its debts as such debts become due, or the taking of
corporate action by the Company to effectuate any such action;
then and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or
the Holders of a majority in aggregate principal amount of the Securities
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the principal of all the Securities to
be due and payable immediately and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture
or in the Securities contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at any time after
the principal of the Securities shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Company shall pay
or shall deposit with the Trustee a sum sufficient to
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pay all matured installments of interest upon all of the Securities and the
principal of and any premium on any and all Securities which shall have
become due otherwise than by acceleration (with interest on overdue
installments of interest, to the extent that payment of such interest is
enforceable under applicable law, and on such principal and applicable
premium at the rate borne by the Securities to the date of such payment or
deposit) and all sums paid or advanced by the Trustee hereunder, the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
8.6 hereof, and any and all defaults under this Indenture, other than the
non-payment of principal of and accrued interest on Securities which shall
have become due solely by acceleration of maturity, shall have been cured or
waived -- then and in every such case such payment or deposit shall cause an
automatic waiver of the Event of Default and its consequences and shall cause
an automatic rescission and annulment of the acceleration of the Securities;
but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceeding
had been taken.
SECTION 7.2. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR.
(a) The Company covenants that in case of:
(1) default in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on
any of the Securities as and when the same shall have become due and
payable whether at the stated maturity thereof, upon redemption thereof
(provided that such redemption is not conditioned upon the deposit of
sufficient moneys for such redemption), upon declaration of acceleration
or otherwise.
then, upon demand of the Trustee, the Company shall pay to the Trustee, for
the benefit of the Holders of the Securities, the whole amount that then
shall have so become due and payable on all such Securities for principal and
any premium or interest, or both, as the case may be, with interest upon the
overdue principal and any premium and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments
of interest at the rate borne by the Securities; and, in addition thereto,
such further amounts as shall be sufficient to cover the costs and expenses
of collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, any expenses or liabilities incurred by the Trustee
hereunder other
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than through its negligence or bad faith, and any other amounts due the
Trustee under Section 8.6 hereof.
(b) If the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Securities and collect in the manner provided by law out of
the property of the Company or any other obligor on such series of Securities
wherever situated, the moneys adjudged or decreed to be payable.
(c) If there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Securities
under the United States Bankruptcy Code or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any similar judicial
proceedings relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to
this Section 7.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and any premium and interest owing and unpaid in respect
of the Securities, and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any amounts
due to the Trustee under Section 8.6 hereof) and of the Holders of Securities
allowed in such judicial proceedings relative to the Company or any other
obligor on the Securities, its or their creditors, or its or their property,
and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses.
(d) All claims and rights of action under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof in any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit
of the Holders of the Securities in respect of which such action was taken.
(e) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent or to accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 7.3. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to any of the Securities pursuant to
this Article shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys, upon
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presentation of the several Securities, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid.
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
8.6 hereof;
SECOND: If the principal of the outstanding Securities in respect of which
such moneys have been collected shall not have become due and be unpaid, to
the payment of interest on the Securities, in the order of the maturity of
the installments of such interest, with interest (to the extent allowed by
law and to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the rate borne by the
Securities, such payments to be made ratably to the persons entitled thereto,
and then to the payment to the Holders entitled thereto of the unpaid
principal of and applicable premium on any of the Securities which shall have
become due (other than Securities previously called for redemption for the
payment of which moneys are held pursuant to the provisions of this
Indenture), whether at stated maturity or by redemption, in the order of
their due dates, beginning with the earliest due date, and if the amount
available is not sufficient to pay in full all Securities due on any
particular date, then to the payment thereof ratably, according to the
amounts of principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: If the principal of the outstanding Securities in respect of which
such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Securities for principal and any premium and interest thereon, with interest
on the overdue principal and any premium and (to the extent allowed by law
and to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Securities; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities, then to the payment of such principal and any
premium and interest without preference or priority of principal and any
premium over interest, or of interest over principal and any premium or of
any installment of interest over any other installment of interest, or of any
Security over any other Security, ratably to the aggregate of such principal
and any premium and accrued and unpaid interest; and
FOURTH: to the payment of the remainder, if any, to the Company or its
successors or assigns, or to whomsoever may lawfully be entitled to the same,
or as a court of competent jurisdiction may determine.
SECTION 7.4. PROCEEDINGS BY SECURITYHOLDERS.
(a) No Holder of any Security shall have any right by virtue of
or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to such Security
and of the continuance thereof, as hereinabove provided, and unless also
Securityholders of a majority in aggregate principal amount of the Securities
then outstanding affected by such Event of Default shall have made
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written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding.
(b) Notwithstanding any other provision in this Indenture,
however, the rights of any Holder of any Security to receive payment of the
principal of and any premium and interest on such Security, on or after the
respective due dates expressed in such Security or on the applicable
redemption date, or to institute suit for the enforcement of any such payment
on or after such respective dates shall not be impaired or affected without
the consent of such Holder.
SECTION 7.5. PROCEEDINGS BY TRUSTEE. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture, by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted to it under this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 7.6. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies
given by this Article VII to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
powers and remedies hereof or of any other powers and remedies available to
the Trustee or the Holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the
Trustee or of any Holder of any of the Securities in exercising any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to Section 7.4 hereof,
every power and remedy given by this Article VII or by law to the Trustee or
to the Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 7.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY
OF SECURITYHOLDERS. The Holders of a majority in aggregate principal amount
of the Securities at the time outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee;
provided, that (subject to Section 8.1 hereof) the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
or responsible officers shall determine that the action or proceeding so
directed would involve the Trustee in personal liability or would be unduly
prejudicial to the rights of Securityholders not joining in such directions.
The Holders of a majority in aggregate principal amount of the
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Securities at the time outstanding may on behalf of all of the Holders of the
Securities waive any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or any premium
or interest on the Securities. Upon any such waiver the Company, the Trustee
and the Holders of the Securities shall be restored to their former positions
and rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 7.7, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 7.8. NOTICE OF DEFAULT. The Trustee shall, within 90 days after
the occurrence of a default, give to all Holders of the Securities, in the
manner provided in Section 14.10, notice of such default, unless such default
shall have been cured before the giving of such notice, the term "default"
for the purpose of this Section 7.8 being hereby defined to be any event
which is or after notice or lapse of time or both would become an Event of
Default; provided that, except in the case of default in the payment of the
principal of or any premium or interest on any of the Securities, or in the
payment of any sinking or purchase fund installments, the Trustee shall be
protected in withholding such notice if and so long as its board of directors
or trustees, executive committee, or a trust committee of directors or
trustees or responsible officers in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities. The Trustee shall not be charged with knowledge of any Event of
Default unless a responsible officer of the Trustee assigned to the corporate
trustee department of the Trustee shall have actual knowledge of such Event
of Default.
SECTION 7.9. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Security by acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but this Section 7.9 shall not apply to
any suit instituted by the Trustee, or to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or any premium or interest on any Security on or after the due
date expressed in such Security or the applicable redemption date.
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ARTICLE VIII.
CONCERNING THE TRUSTEE
SECTION 8.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. If an Event of Default has occurred (which has
not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provisions of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of any Event of Default and after the
curing or waiving of all Events of Default which may have occurred
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
Section 7.7 hereof relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture.
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SECTION 8.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 8.1 hereof:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof is herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
by such exercise;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, note or other paper or document, unless
requested in writing to do so by the Holders of at least a majority in
principal amount of the then outstanding Securities; provided that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding;
(g) no provision of this Indenture shall require the Trustee to
extend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it; and
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(h) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or through agents or
attorneys; provided that the Trustee shall not be liable for the conduct or
acts of any such agent or attorney that shall have been appointed in
accordance herewith with due care.
SECTION 8.3. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Securities (except in the certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application
by the Company of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee in conformity with this Indenture.
The Trustee shall not be responsible for recording or filing this Indenture,
any supplemental indenture, or any financing or continuation statement in any
public office at any time or times.
SECTION 8.4. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR REGISTRAR MAY
OWN SECURITIES. The Trustee and any Authenticating Agent or paying agent in
its individual or other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
Authenticating Agent or paying agent.
SECTION 8.5. MONEYS TO BE HELD IN TRUST. Subject to Section 4.4 hereof,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by the Company
and the Trustee from time to time as may be permitted by law.
SECTION 8.6. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any law
in regard to the compensation of a trustee of an express trust), and the
Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
agents, including any Authenticating Agents, and of all persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim or liability. The obligations of the Company under this Section 8.6 to
compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
any particular Securities.
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SECTION 8.7. OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in the
administration of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to the taking,
suffering or omitting of any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such Officers' Certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under this Indenture in
reliance thereon.
SECTION 8.8. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall be
subject to and shall comply with the provisions of Section 310 of the TIA;
provided that, to the extent permitted by law, Norwest Bank Minnesota,
National Association shall not be deemed to have a conflicting interest for
purposes of Section 310(b) of the TIA because of its capacity as trustee
under the Company's pollution control and Resource Recovery bonds. Nothing
in this Indenture shall be deemed to prohibit the Trustee or the Company from
making any application permitted pursuant to such section.
SECTION 8.9. EXISTENCE AND ELIGIBILITY OF TRUSTEE. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a
corporation organized and doing business under the laws of the United States
or any State thereof or of the District of Columbia (or a corporation or
other Person permitted to act as trustee by the Commission), subject to
supervision or examination by such bodies and authorized under such laws to
exercise corporate trust powers and having a combined capital and surplus of
at least $150,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
authority, then for the purposes of this Section 8.9, the combined capital
and surplus shall be deemed to be as set forth in its most recent report of
condition so published. No obligor upon the Securities or Person directly or
indirectly controlling, controlled by, or under common control with such
obligor shall serve as Trustee. If at any time the Trustee shall cease to be
eligible in accordance with this Section 8.9, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.10
hereof.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article, the Trustee may
at any time resign and be discharged of the trusts created by this Indenture
by giving written notice to the Company specifying the day upon which such
resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in principal amount of the then
outstanding Securities or by their attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is
continuing, and no event has occurred and is continuing that, with the giving
of notice or the lapse of time or both, would
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become an Event of Default, the Company may remove any Trustee upon written
notice to the Holder of each Security outstanding and the Trustee.
(d) If at any time (1) the Trustee shall cease to be eligible in
accordance with Section 8.9 hereof and shall fail to resign after written
request therefor by the Company or by any Holder who has been a bona fide
Holder for at least six months, (2) the Trustee shall fail to comply with
Section 8.8 hereof after written request therefor by the Company or any such
Holder, or (3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Trustee may be removed forthwith by an
instrument or concurrent instruments in writing filed with the Trustee and
either:
(1) signed by the President or any Vice President of the Company
and attested by the Secretary or an Assistant Secretary of the Company;
or
(2) signed and acknowledged by the Holders of a majority in
principal amount of outstanding Securities or by their attorneys in fact
duly authorized.
(e) Any resignation or removal of the Trustee shall not become
effective until acceptance of appointment by the successor Trustee as
provided in Section 8.11 hereof.
SECTION 8.11. APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be removed, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
(b) The Company shall provide written notice of its appointment
of a Successor Trustee to the Holder of each Security outstanding following
any such appointment.
(c) If no appointment of a successor Trustee shall be made
pursuant to Section 8.11(a) hereof within 60 days after appointment shall be
required, any Securityholder or the resigning Trustee may apply to any court
of competent jurisdiction to appoint a successor Trustee. Said court may
thereupon after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
(d) Any Trustee appointed under this Section 8.11 as a successor
Trustee shall be a bank or trust company eligible under Section 8.9 hereof
and qualified under Section 8.8 hereof.
SECTION 8.12. ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in Section 8.11
hereof shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance,
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shall become vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to Section 8.6 hereof, execute and deliver an
instrument transferring to such successor Trustee all the rights and powers
of the Trustee so ceasing to act. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing in
order more fully and certainly to vest in and confirm to such successor
Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to Section 8.6
hereof.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.12 unless at the time of such acceptance such successor
Trustee shall be qualified under Section 8.8 hereof and eligible under
Section 8.9 hereof.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.12, the successor Trustee shall mail notice of its
succession hereunder to all Holders of Securities as the names and addresses
of such Holders appear on the registry books.
SECTION 8.13. SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided such corporation shall
be otherwise qualified and eligible under this Article.
(b) If at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver
such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificates of the Trustee shall
have; provided that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 8.14. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the provisions
of Section 311 of the TIA.
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SECTION 8.15. AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents appointed by
the Trustee with the written consent of the Company, with power to act on its
behalf and subject to the direction of the Trustee in the authentication and
delivery of Securities in connection with transfers and exchanges under
Sections 2.6, 2.7, 2.8, 2.13, 3.3, and 12.4 hereof, as fully to all intents
and purposes as though such Authenticating Agents had been expressly
authorized by those Sections to authenticate and deliver Securities. For all
purposes of this Indenture, the authentication and delivery of Securities by
any Authenticating Agent pursuant to this Section 8.15 shall be deemed to be
the authentication and delivery of such Securities "by the Trustee." Any such
Authenticating Agent shall be a bank or trust company or other Person of the
character and qualifications set forth in Section 8.9 hereof.
(b) Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 8.15, without the execution or filing
of any paper or any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be eligible under this Section 8.15, the Trustee may, with the written
consent of the Company, appoint a successor Authenticating Agent, and upon so
doing shall give written notice of such appointment to the Company and shall
mail, in the manner provided in Section 14.10, notice of such appointment to
the Holders of Securities.
(d) The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services, and the Trustee shall
be entitled to be reimbursed for such payments, in accordance with Section
8.6 hereof.
(e) Sections 8.2, 8.3, 8.6, 8.7 and 8.9 hereof shall be
applicable to any Authenticating Agent.
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ARTICLE IX.
CONCERNING THE SECURITYHOLDERS
SECTION 9.1. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities may take any action, the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments
of similar tenor executed by such Securityholders in person or by agent or
proxy appointed in writing, (b) by the record of such Securityholders voting
in favor thereof at any meeting of Securityholders duly called and held in
accordance with Article X hereof, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
SECTION 9.2. PROOF OF EXECUTION BY SECURITYHOLDERS.
(a) Subject to Sections 8.1, 8.2 and 10.5 hereof, proof of the
execution of any instruments by a Securityholder or the agent or proxy for
such Securityholder shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of
Securities shall be proved by the register for the Securities maintained by
the Trustee.
(b) The record of any Securityholders' meeting shall be proven in
the manner provided in Section 10.6 hereof.
SECTION 9.3. WHO DEEMED ABSOLUTE OWNERS. Subject to Sections 2.4(f) and
9.1 hereof, the Company, the Trustee, any paying agent and any Authenticating
Agent shall deem the person in whose name any Security shall be registered
upon the register for the Securities to be, and shall treat such person as,
the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the
principal and premium, if any, and interest on such Security, and for all
other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Authenticating Agent shall be affected by any notice to the contrary.
All such payments shall be valid and effectual to satisfy and discharge the
liability upon any such Security to the extent of the sum or sums so paid.
SECTION 9.4. COMPANY-OWNED SECURITIES DISREGARDED. In determining whether
the Holders of the requisite aggregate principal amount of outstanding
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on
the Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities which the Trustee
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knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith to third parties may be regarded as outstanding
for the purposes of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to take action with respect
to such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 9.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. Except as may
be otherwise required in the case of a Global Security by the applicable
rules and regulations of the Depository, at any time prior to the taking of
any action by the Holders of the percentage in aggregate principal amount of
the Securities specified in this Indenture in connection with such action,
any Holder of a Security, which has been included in the Securities the
Holders of which have consented to such action, may, by filing written notice
with the Trustee at the corporate trust office of the Trustee and upon proof
of ownership as provided in Section 9.2(a) hereof, revoke such action so far
as it concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange, substitution or upon registration of transfer therefor,
irrespective of whether or not any notation thereof is made upon such
Security or such other Securities.
SECTION 9.6. RECORD DATE FOR SECURITYHOLDER ACTS. If the Company shall
solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other act, the Company may, at its
option, by Board Resolution, fix in advance a record date for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other act may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purpose of determining whether
Holders of the requisite aggregate principal amount of outstanding Securities
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the outstanding Securities shall be computed as of the record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Securityholders on the record date shall
be deemed effective unless it shall become effective pursuant to this
Indenture not later than six months after the record date. Any such record
date shall be at least 30 days prior to the date of the solicitation to the
Securityholders by the Company.
ARTICLE X.
SECURITYHOLDERS' MEETING
SECTION 10.1. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to this Article X for any
of the following purposes:
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(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any Event
of Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to Article VII;
(b) to remove the Trustee pursuant to Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 12.2 hereof; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
Securities, as the case may be, under any other provision of this Indenture
or under applicable law.
SECTION 10.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Holders of Securities to take any action specified in
Section 10.1 hereof, to be held at such time and at such place as the Trustee
shall determine. Notice of every such meeting of Securityholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given to Holders of the
Securities that may be affected by the action proposed to be taken at such
meeting in the manner provided in Section 14.10 hereof. Such notice shall be
given not less than 20 nor more than 90 days prior to the date fixed for such
meeting.
SECTION 10.3. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. If at any
time the Company, pursuant to a Board Resolution, or the Holders of at least
10% in aggregate principal amount of the Securities then outstanding, shall
have requested the Trustee to call a meeting of Securityholders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place for such meeting and may
call such meeting to take any action authorized in Section 10.1 hereof, by
giving notice thereof as provided in Section 10.2 hereof.
SECTION 10.4. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meetings of Securityholders a Person shall (a) be a Holder of one or more
Securities affected by the action proposed to be taken or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more
such Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote
at such meeting and their counsel and any representatives (including
employees) of the Trustee and its counsel and any representatives (including
employees) of the Company and its counsel.
SECTION 10.5. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to
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the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall
think fit.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by the Securityholders as provided in Section 10.3 hereof,
in which case the Company or Securityholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by the
Holders of a majority in aggregate principal amount of the Securities present
in person or by proxy at the meeting.
(c) Subject to Section 9.4 hereof, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by such Securityholder;
provided that no vote shall be cast or counted at any meeting in respect of
any Security ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities held by such chairman or instruments in writing as aforesaid duly
designating such chairman as the person to vote on behalf of other
Securityholders. At any meeting of Securityholders duly called pursuant to
Section 10.2 or 10.3 hereof, the presence of persons holding or representing
Securities in an aggregate principal amount sufficient to take action on any
business for the transaction for which such meeting was called shall
constitute a quorum. Any meeting of Securityholders duly called pursuant to
Section 10.2 or 10.3 hereof may be adjourned from time to time by the Holders
of a majority in aggregate principal amount of the Securities present in
person or by proxy at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 10.6. VOTING. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities or of their
representatives by proxy and the principal amount of Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of such meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section
10.2 hereof. The record shall show the aggregate principal amount of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee and the Trustee
shall have the ballots taken at the meeting attached to such duplicate. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
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SECTION 10.7. RIGHTS OF TRUSTEE OR SECURITYHOLDERS NOT DELAYED. Nothing in
this Article X shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Securityholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders of Securities under any of the provisions of this Indenture
or of the Securities.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
SECTION 11.1. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or
sell, or otherwise dispose all or substantially all of its assets unless (i)
the corporation formed by such consolidation or into which the Company is
merged or the Person which receives all or substantially all of the assets
pursuant to such sale, transfer or other disposition shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of the
principal of and premium and interest on all of the Securities and the
performance of every covenant of this Indenture on the part of the Company to
be performed or observed and (ii) the Company or such successor corporation
or Person, as the case may be, shall not, immediately after such
consolidation or merger, or such sale or disposition, be in default in the
performance of any such covenant. For purposes of this Article XI the phrase
"ALL OR SUBSTANTIALLY ALL OF ITS ASSETS" shall mean 50% or more of the total
assets of the Company as shown on the balance sheet of the Company as of the
end of the calendar year immediately preceding the day of the year in which
such determination is made and nothing in this Indenture shall prevent or
hinder the Company from selling, transferring or otherwise disposing during
any calendar year (in one transaction or a series of transactions) less than
50% of the amount of its total assets as shown on the balance sheet of the
Company as of the end of the immediately preceding calendar year.
SECTION 11.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or
merger, or any sale, transfer or other disposition of all or substantially
all of the assets of the Company in accordance with Section 11.1 hereof, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, transfer or other disposition is made shall
succeed to, and be substituted for and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and the Company shall be
released from all obligations hereunder.
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ARTICLE XII.
SUPPLEMENTAL INDENTURES
SECTION 12.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS
(a) The Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable, and not
inconsistent with this Indenture or prejudicial to the interests of the
Holders, for the purpose of supplying any omission, curing any
ambiguity, or curing, correcting or supplementing any defective or
inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or such change or elimination is applicable
only to Securities issued after the effective date of such change or
elimination;
(3) to establish the form of Securities as permitted by Section
2.1 hereof or to establish or reflect any terms of any Security
determined pursuant to Section 2.5 hereof;
(4) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(5) to grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(6) to permit the Trustee to comply with any duties imposed upon
it by law;
(7) to specify further the duties and responsibilities of, and to
define further the relationships among the Trustee, any Authenticating
Agent and any paying agent;
(8) to add to the covenants of the Company for the benefit of the
Holders, to add security for the Securities or to surrender a right or
power conferred on the Company herein; and
(9) to make any other change that is not prejudicial to the
Trustee or the Holders.
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(b) The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
(c) Any supplemental indenture authorized by this Section 12.1
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any
of the provisions of Section 12.2 hereof.
SECTION 12.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(a) With the consent (evidenced as provided in Section 9.1
hereof) of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding, the Company, when authorized by Board
Resolution, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Securityholders; provided that no such supplemental
indenture shall:
(1) change the maturity date of any Security, or reduce the rate
or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or change the coin or
currency in which the principal of any Security or any premium or
interest thereon is payable, or change the date on which any Security
may be redeemed or repaid at the option of the holder thereof or
adversely affect the rights of the Securityholders to institute suit for
the enforcement of any payment of principal of or any premium or
interest on any Security, in each case without the consent of the Holder
of each Security so affected; or
(2) modify this Section 12.2(a) or reduce the aforesaid
percentage of Securities, the Holders of which are required to consent
to any such supplemental indenture or to reduce the percentage of
Securities, the Holders of which are required to waive Events of
Default, in each case, without the consent of the Holders of all of the
Securities then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture.
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(c) It shall not be necessary for the consent of the Holders of
Securities under this Section 12.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(d) Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to this Section 12.2, the Trustee
shall give notice in the manner provided in Section 14.10 hereof, setting
forth in general terms the substance of such supplemental indenture, to all
Securityholders. Any failure of the Trustee to give such notice or any
defect therein shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 12.3. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES. Any supplemental indenture executed pursuant to this Article XII
shall comply with the TIA. Upon the execution of any supplemental indenture
pursuant to this Article XII, the Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Securityholders shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 12.4. NOTATION ON SECURITIES. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article XII may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as approved by the Trustee and the
Board of Directors with respect to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by
the Company, authenticated by the Trustee and delivered in exchange for the
Securities then outstanding.
SECTION 12.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to Sections 8.1 and 8.2 hereof, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies
with the requirements of this Article XII.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.1. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or any premium or interest on
any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company, contained in this Indenture or in any supplemental indenture, or in
any Security, or because of the creation of any indebtedness represented
thereby, shall be had
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against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, either
directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issuance
of the Securities.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
SECTION 14.1. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
SECTION 14.2. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
successor of the Company.
SECTION 14.3. NOTICES.
(a) Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the
Securityholders on the Company may be given or served by being deposited
postage prepaid in a post office letter box addressed (until another address
is filed by the Company with the Trustee) at the principal executive offices
of the Company, to the attention of the Secretary. Any notice, direction,
request or demand by any Securityholder or the Company to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the corporate trust office of the Trustee,
Attention: Vice President, Corporate Trust Department.
(b) The Company shall provide any notices required under this
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any series of Securities is listed.
SECTION 14.4. GOVERNING LAW. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of Minnesota, and
for all purposes shall be construed in accordance with the laws of said
State.
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SECTION 14.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenants compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates
delivered pursuant to Section 5.5 hereof) shall include (1) a statement that
each Person making such certificate or opinion has read such covenant or
condition and the definitions relating thereto; (2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person has
made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not,
in the opinion of each such Person, such condition or covenant has been
complied with.
(c) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
(d) Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel
delivered under the Indenture may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such person
knows, or in the exercise of reasonable care should know, that the
certificate or opinion of representations with respect to such matters are
erroneous. Any opinion of counsel delivered hereunder may contain standard
exceptions and qualifications satisfactory to the Trustee.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
independent public accountant or firm of accountants, unless such officer or
counsel, as the case may be, knows that the certificate or opinions or
representations with respect to the accounting matters upon which the
certificate, statement or opinion of such officer
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or counsel may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any certificate or
opinion of any firm of independent public accountants filed with the Trustee
shall contain a statement that such firm is independent.
(f) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 14.6. BUSINESS DAYS. Unless otherwise provided pursuant to Section
2.5(c) hereof, in any case where the date of maturity of the principal of or
any premium or interest on any Security or the date fixed for redemption of
any Security is not a Business Day, then payment of such principal or any
premium or interest need not be made on such date but may be made on the next
succeeding Business Day with the same force and affect as if made on the date
of maturity or the date fixed for redemption, and, in the case of timely
payment thereof, no interest shall accrue for the period from and after such
Interest Payment Date or the date on which the principal of the Security is
required to be paid.
SECTION 14.7. TRUST INDENTURE ACT TO CONTROL. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the TIA, such
required provision of the TIA shall govern.
SECTION 14.8. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and
the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 14.9. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 14.10. MANNER OF MAILING NOTICE TO SECURITYHOLDERS. Any notice or
demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or the Company to or on the Holders of
Securities, as the case may be, shall be given or served by first-class mail,
postage prepaid, addressed to the Holders of such Securities at their last
addresses as the same appear on the register for the Securities referred to
in Section 2.6, and any such notice shall be deemed to be given or served by
being deposited in a post office letter box in the form and manner provided
in this Section 14.10. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
notice to any Holder by mail, then such notification to such Holder as shall
be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
SECTION 14.11. APPROVAL BY TRUSTEE OF EXPERT OR COUNSEL. Wherever the
Trustee is required to approve an Expert or counsel who is to furnish
evidence of compliance with conditions precedent in this Indenture, such
approval by the Trustee shall be deemed to have been given
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upon the taking of any action by the Trustee pursuant to and in accordance
with the certificate or opinion so furnished by such Expert or counsel.
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this Indenture
to be signed and acknowledged by one of its Vice Presidents, and attested by
its Secretary, and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION has caused
this Indenture to be signed and acknowledged by one of its Vice Presidents or
authorized Corporate Trust Officers, and attested by one of its authorized
officers, as of the day and year first written above.
NORTHERN STATES POWER COMPANY
By /s/ Edward J. McIntyre
---------------------------------------
ATTEST: E.J. MCINTYRE, VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
/s/ John P. Moore, Jr.
JOHN P. MOORE, JR., CORPORATE SECRETARY
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, AS TRUSTEE
ATTEST: By /s/ Timothy P. Mowdy
--------------------------------------------
TIMOTHY P. MOWDY, CORPORATE TRUST OFFICER
/s/ Curtis Schwegman
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EXHIBIT A
FORM OF GLOBAL SECURITY
REGISTERED REGISTERED
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE
DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED
HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
NEW YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NORTHERN STATES POWER COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA)
__% DEBT SECURITY, SERIES DUE _______
CUSIP: NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
INTEREST RATE: MATURITY DATE:
NORTHERN STATES POWER COMPANY, a corporation of the State of Minnesota
(the "COMPANY"), for value received hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Security has two or more Original
Issue Dates, interest shall, beginning on each
A-1
<PAGE>
such Original Issue Date, begin to accrue for that part of the principal
amount to which that Original Issue Date is applicable) set forth above or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually in arrears on the _____ and _____ in
each year, commencing on the first such Interest Payment Date succeeding the
applicable Original Issue Date set forth above, at the per annum Interest
Rate set forth above, until the principal hereof is paid or made available
for payment. No interest shall accrue on the Maturity Date, so long as the
principal amount of this Global Security is paid on the Maturity Date. The
interest so payable and punctually paid or duly provided for on any such
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security is registered at the close of business on
the Regular Record Date for such interest, which shall be the ________ or
_______, as the case may be, next preceding such Interest Payment Date;
provided, that the first Interest Payment Date for any part of this Security,
the Original Issue Date of which is after a Regular Record Date but prior to
the applicable Interest Payment Date, shall be the Interest Payment Date
following the next succeeding Regular Record Date; and provided, that
interest payable on the Maturity Date set forth above or, if applicable, upon
redemption or acceleration, shall be payable to the Person to whom principal
shall be payable. Except as otherwise provided in the Indenture (as defined
below), any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
shall be paid to the Person in whose name this Security is registered at the
close of business on a Special Record Date forthe payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to
Securityholders not more than fifteen days or fewer than ten days prior to
such Special Record Date. On or before Noon, New York City time, or such
other time as shall be agreed upon between the Trustee and the Depository, of
the day on which such payment of interest is due on this Global Security
(other than maturity), the Trustee shall pay to the Depository such interest
in same day funds. On or before Noon, New York City time, or such other time
as shall be agreed upon between the Trustee and the Depository, of the day on
which principal, interest payable at maturity and premium, if any, is due on
this Global Security and following receipt of the necessary funds from the
Company and following receipt of the necessary funds from the Company, the
Trustee shall deposit with the Depository the amount equal to the principal,
interest payable at maturity and premium, if any, by wire transfer into the
account specified by the Depository. As a condition to the payment, on the
Maturity Date or upon redemption or acceleration, of any part of the
principal and applicable premium of this Global Security, the Depository
shall surrender, or cause to be surrendered, this Global Security to the
Trustee, whereupon a new Global Security shall be issued to the Depository.
This Global Security is a global security in respect of a duly
authorized issue of Debt Securities, Series (the "SECURITIES OF THIS
SERIES", which term includes any Global Securities representing such
Securities) of the Company issued and to be issued under an Indenture dated
as of July 1, 1999 between the Company and Norwest Bank Minnesota, National
Association, as trustee (herein called the "TRUSTEE", which term includes any
successor Trustee under the Indenture) and indentures supplemental thereto
(collectively, the "INDENTURE"). Under the Indenture, one or more series of
Securities may be issued and, as used herein, the term "Securities" refers to
the Securities of this Series and any other outstanding series of Securities.
Reference is hereby made for a more complete statement of the respective
rights, limitations of rights, duties and immunities under the Indenture of
the Company, the Trustee and the Securityholders and of the terms upon which
the Securities are and are to be authenticated and
A-2
<PAGE>
delivered. This Global Security has been issued in respect of the series
designated on the first page hereof, limited in aggregate principal amount to
$ .
Each Security of this Series shall be dated and issued as of the date of
its authentication by the Trustee and shall bear an Original Issue Date or
Dates. Each Security or Global Security issued upon transfer, exchange or
substitution of such Security or Global Security shall bear the Original
Issue Date or Dates of such transferred, exchanged or substituted Security or
Global Security, as the case may be.
[As applicable, one of the following two sentences: This Global Security
may not be redeemed prior to , . This Global
Security is not redeemable prior to the Maturity Date set forth on the first
page hereof.] [If applicable: On or after , , this Global
Security is redeemable in whole or in part in increments of $1,000 (provided
that any remaining principal amount of this Global Security shall be at least
$100,000) at the option of the Company at the following redemption prices
(expressed as a percentage of the principal amount to be redeemed) plus
accrued interest to the redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Global Security in part only, a new Global Security or Securities of
like tenor and series for the unredeemed portion hereof will be issued in the
name of the Securityholder hereof upon the surrender hereof.]
Interest payments for this Global Security shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or date on which the principal of this Global Security
is required to be paid is not a Business Day, then payment of principal,
premium or interest need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date or date on which the principal of this Global Security
is required to be paid and, in the case of timely payment thereof, no
interest shall accrue for the period from and after such Interest Payment
Date or the date on which the principal of this Global Security is required
to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including
obligations to register the transfer or exchange of Securities, replace
stolen, lost or mutilated Securities, maintain paying agencies and hold
monies for payment in trust, all as set forth in the Indenture) if the
Company deposits with the Trustee money, U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance
with their terms will provide money, or a combination of money and U.S.
Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Securities on the dates such payments are due in accordance with the terms of
the Securities.
A-3
<PAGE>
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Securityholders under the Indenture at any time
by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the outstanding Securities. Any such
consent or waiver by the Holder of this Global Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Global
Security and of any Security issued upon the registration of transfer hereof
or in exchange therefor or in lieu thereof whether or not notation of such
consent or waiver is made upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to such Securities, the Holders of not less
than a majority in principal amount of the outstanding Securities affected by
such Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the
Trustee shall have failed to institute such proceeding within 60 days;
PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of and any
premium or interest on this Security on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this Global
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Global Security at the times, places and rates
and the coin or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Security may be transferred only as permitted by the
legend hereto.
If at any time the Depository for this Global Security notifies the
Company that it is unwilling or unable to continue as Depository for this
Global Security or if at any time the Depository for this Global Security
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to this Global
Security. If a successor Depository for this Global Security is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company's election to issue this
Security in global form shall no longer be effective with respect to this
Global Security and the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of individual
Securities of this Series in exchange for this Global Security, will
authenticate and deliver individual Securities of this Series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of this Global Security.
The Company may at any time and in its sole discretion determine that
all Securities of this Series (but not less than all) issued or issuable in
the form of one or more Global Securities
A-4
<PAGE>
shall no longer be represented by such Global Security or Securities. In
such event, the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Securities of
this Series in exchange for such Global Security, shall authenticate and
deliver, individual Securities of this Series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities in exchange for such Global
Security or Securities.
Under certain circumstances specified in the Indenture, the Depository
may be required to surrender any two or more Global Securities which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Security in
principal amount equal to the aggregate principal amount of, and with all
terms identical to, the Global Securities surrendered thereto and that shall
indicate all Original Issue Dates and the principal amount applicable to each
such Original Issue Date.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
Unless the certificate of authentication hereon has been executed by the
Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer, this Global Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
All terms used in this Global Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:
----------------------------------
Dated: Title:
-------------------------------
Attest:
------------------------------
Title:
-------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the Securities
of the series herein designated, described
or provided for in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
By:
-------------------------------------------
AUTHORIZED OFFICER
A-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian ___________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of --------------------------------------
survivorship and not as tenants in common State
Additional abbreviations may also be used
though not in the above list.
----------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- ----------------------------------------------
the within security and all rights thereunder,
hereby irrevocably constituting and appointing
____________ attorney to transfer said security
on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------------------------
---------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within instrument in every
particular, without alteration or
enlargement or any change
whatever.
A-6
<PAGE>
EXHIBIT B
FORM OF SECURITY
REGISTERED REGISTERED
NORTHERN STATES POWER COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA)
___% DEBT SECURITY, SERIES DUE _______
CUSIP: PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: NUMBER:
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "COMPANY"), for value received hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date set forth above or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on
and in each year, commencing on
the first such Interest Payment Date succeeding the Original Issue Date set
forth above, at the per annum Interest Rate set forth above, until the
principal hereof is paid or made available for payment. No interest shall
accrue on the Maturity Date, so long as the principal amount of this Security
is paid in full on the Maturity Date. The interest so payable and punctually
paid or duly provided for on any such Interest Payment Date will, as provided
in the Indenture (as defined below), be paid to the Person in whose name this
Security is registered at the close of business on the Regular Record Date
for such interest, which shall be the or ,
as the case may be, next preceding such Interest Payment Date; provided that
the first Interest Payment Date for any Security, the Original Issue Date of
which is after a Regular Record Date but prior to the applicable Interest
Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture (referred to on the
reverse hereof), any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record
Date and shall be paid to the Person in whose name this Security is
registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall
be given to Securityholders not more than fifteen days nor fewer than ten
days prior to such
B-1
<PAGE>
Special Record Date. Principal, applicable premium and interest due at the
maturity of this Security shall be payable in immediately available funds
when due upon presentation and surrender of this Security at the corporate
trust office of the Trustee or at the authorized office of any paying agent
in the Borough of Manhattan, the City and State of New York. Interest on
this Security (other than interest payable at maturity) shall be paid by
check in clearinghouse funds to the Holder as its name appears on the
register; provided, that if the Trustee receives a written request from any
Holder of Securities (as defined below), the aggregate principal amount of
all of which having the same Interest Payment Date as this Security equals or
exceeds $10,000,000, on or prior to the applicable Regular Record Date,
interest on the Security shall be paid by wire transfer of immediately
available funds to a bank within the continental United States designated by
such Holder in its request or by direct deposit into the account of such
Holder designated by such Holder in its request if such account is maintained
with the Trustee or any paying agent.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
NORTHERN STATES POWER COMPANY
By:
-----------------------------------
Dated: Title:
--------------------------------
Attest:
-------------------------------
Title:
-------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Security is one of the Securities
of the series herein designated, described
or provided for in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
By:
----------------------------------------
AUTHORIZED OFFICER
B-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
NORTHERN STATES POWER COMPANY
___% DEBT SECURITIES, SERIES DUE ____
This Security is one of a duly authorized issue of Debt Securities,
Series (the "SECURITIES OF THIS SERIES") of the Company issued and to be
issued under an Indenture dated as of June 1, 1999, between the Company and
Norwest Bank Minnesota, National Association, as trustee (herein called the
"TRUSTEE", which term includes any successor Trustee under the Indenture) and
indentures supplemental thereto (collectively, the "INDENTURE"). Under the
Indenture, one or more series of Securities may be issued and, as used
herein, the term "Securities" refers to the Securities of this Series and any
other outstanding series of Securities. Reference is hereby made for a more
complete statement of the respective rights, limitations of rights, duties
and immunities under the Indenture of the Company, the Trustee and the
Security holders and of the terms upon which the Securities are and are to be
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $___________.
[As applicable, one of the following two sentences: This Security may
not be redeemed prior to , . This Security is not
redeemable prior to the Maturity Date set forth on the face hereof.] [If
applicable: On or after , , this Security is
redeemable in whole or in part in increments of $1,000 (provided that any
remaining principal amount of this Security shall be at least $1,000) at the
option of the Company at the following redemption prices (expressed as a
percentage of the principal amount to be redeemed) plus accrued interest to the
redemption date:
Redemption Periods Redemption Prices
------------------ -----------------
Notice of redemption will be given by mail to Holders of Securities of this
Series not less than 30 or more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. In the event of redemption of
this Security in part only, a new Security or Securities of this Series of
like tenor for the unredeemed portion hereof will be issued in the name of
the Securityholder hereof upon the surrender hereof.
Interest payments for this Security shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or the date on which the principal of this Security is
required to be paid is not a Business Day, then payment of principal, premium
or interest need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date or the date on which the principal of this Security is
required to be paid, and, in the case of timely payment thereof, no interest
shall accrue for the period from and after such Interest Payment Date or the
date on which the principal of this Security is required to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including
obligations to register the transfer or exchange of Securities, replace
B-3
<PAGE>
stolen, lost or mutilated Securities, maintain paying agencies and hold
monies for payment in trust, all as set forth in the Indenture) if the
Company deposits with the Trustee money, U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance
with their terms will provide money, or a combination of money and U.S.
Government Obligations, in any event in an amount sufficient, without
reinvestment, to pay all the principal of and any premium and interest on the
Securities on the dates such payments are due in accordance with the terms of
the Securities.
If an Event of Default shall occur and be continuing, the principal
of the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modifications of the rights and obligations of
the Company and the rights of the Securityholders under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the outstanding Securities. Any
such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor in lieu thereof whether or not notation of such consent or waiver is
made upon the Security.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to such Securities, the Holders of not less
than a majority in principal amount of the outstanding Securities affected by
such Event of Default shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as Trustee and the
Trustee shall have failed to institute such proceeding within 60 days;
PROVIDED, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of and any
premium or interest on this Security on or after the respective due dates
expressed here.
No reference herein to the Indenture and to provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, places and rates and the
coin or currency prescribed in the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security register. Upon surrender of this Security for registration or
transfer at the corporate trust office of the Trustee or such other office or
agency as may be designated by the Company in the Borough of Manhattan, the
City and State of New York, endorsed by or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
registrar, duly executed by the Holder hereof or the attorney in fact of such
Holder duly authorized in writing, one or more new Securities of this Series
of like tenor and of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
The Securities of this Series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and
B-4
<PAGE>
subject to certain limitations therein set forth, Securities of this Series
are exchangeable for a like aggregate principal amount of Securities of this
Series of like tenor and of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner thereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of Minnesota.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-5
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian ___________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of --------------------------------------
survivorship and not as tenants in common State
Additional abbreviations may also be used
though not in the above list.
----------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- ----------------------------------------------
the within security and all rights thereunder,
hereby irrevocably constituting and appointing
_______________ attorney to transfer said
security on the books of the Company, with full
power of substitution in the premises.
Dated:
----------------------------------------
---------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within instrument in every
particular, without alteration or
enlargement or any change
whatever.
B-6
<PAGE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SUPPLEMENTAL INDENTURE NO. 1
FROM
NORTHERN STATES POWER
COMPANY
(A MINNESOTA CORPORATION)
TO
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
TRUSTEE
-----------
DATED AS OF
JULY 15, 1999
SUPPLEMENTAL TO INDENTURE
DATED AS OF JULY 1, 1999
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
Parties................................................................................. 1
Recitals................................................................................ 1
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 Integral Part of Indenture............................................. 2
SECTION 1.02 (a) Definitions..................................................... 2
(b) References to Articles and Sections............................. 2
(c) Terms Referring to this Supplemental Indenture.................. 2
ARTICLE TWO
6.875% NOTES, SERIES DUE 2009
SECTION 2.01 Designation and Principal Amount....................................... 2
SECTION 2.02 Stated Maturity Date................................................... 2
SECTION 2.03 Interest Payment Dates................................................. 2
SECTION 2.04 Office for Payment..................................................... 2
SECTION 2.05 Redemption Provisions.................................................. 2
SECTION 2.06 Authorized Denominations............................................... 4
SECTION 2.07 Occurrence of Release Date............................................. 4
SECTION 2.08 Form of 6.875% Senior Notes, Series Due 2009........................... 4
ARTICLE THREE
COVENANTS
SECTION 3.01 Limitation on Liens.................................................... 4
SECTION 3.02 Certain Definitions.................................................... 5
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 Recitals of fact, except as stated, are statements
of the Company......................................................... 8
SECTION 4.02 Supplemental Indenture to be construed as a part
of the Indenture....................................................... 8
SECTION 4.03 (a) Trust Indenture Act to control.................................. 8
(b) Severability of provisions contained in
Supplemental Indenture and Notes................................ 8
SECTION 4.04 References to either party in Supplemental Indenture
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C>
include successors or assigns.......................................... 8
SECTION 4.05 (a) Provision for execution in counterparts......................... 8
(b) Table of Contents and descriptive headings
of Articles not to affect meaning............................... 8
</TABLE>
Exhibit A - Form of 6.875% Notes, Series due 2009
(ii)
<PAGE>
SUPPLEMENTAL INDENTURE No. 1, made as of the 15th day of July, 1999,
by and between NORTHERN STATES POWER COMPANY, a corporation duly organized
and existing under the laws of the State of Minnesota (the "Company"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, as trustee (the
"Trustee"):
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered its
Indenture (hereinafter referred to as the "Indenture"), made as of July 1, 1999;
and
WHEREAS, Section 2.5 of the Indenture provides that Securities shall be
issued in series and that a Company Order shall specify the terms of each
series; and
WHEREAS, the Company has this day delivered a Company Order setting
forth the terms of a series of Securities designated "6.875% Senior Notes,
Series due 2009" (hereinafter sometimes referred to as the "Notes due 2009");
and
WHEREAS, Section 12.1 of the Indenture provides that the Company and
the Trustee may enter into indentures supplemental thereto for the purposes,
among others, of establishing the form of Securities or establishing or
reflecting any terms of any Security and adding to the covenants of the Company;
and
WHEREAS, the execution and delivery of this Supplemental Indenture No.
1 (herein, "this Supplemental Indenture") have been duly authorized by a
resolution adopted by the Board of Directors of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to set forth the terms and conditions upon which the
Notes due 2009 are, and are to be, authenticated, issued and delivered, and in
consideration of the premises of the purchase and acceptance of the Notes due
2009 by the Holders thereof and the sum of one dollar duly paid to it by the
Trustee at the execution of this Supplemental Indenture, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective Holders from time to time of
the Notes due 2009, as follows:
1
<PAGE>
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01 This Supplemental Indenture constitutes an integral
part of the Indenture.
SECTION 1.02 For all purposes of this Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have
the meanings specified in the Indenture;
(b) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture; and
(c) The terms "hereof," "herein," "hereby," "hereto," "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
6.875% SENIOR NOTES, SERIES DUE 2009
SECTION 2.01 There shall be a series of Securities designated the
"6.875% Senior Notes, Series due 2009" (the "Notes due 2009"). The
Notes due 2009 shall be limited to $250,000,000 aggregate principal
amount.
SECTION 2.02 Except as otherwise provided in Section 2.05 hereof, the
principal amount of the Notes due 2009 shall be payable on the stated
maturity date of August 1, 2009.
SECTION 2.03 The Notes due 2009 shall be dated their date of
authentication as provided in the Indenture and shall bear interest
from their date at the rate of 6.875% per annum, payable semi-annually
on February 1 and August 1 of each year, commencing February 1, 2000.
The Regular Record Dates with respect to such February 1 and August 1
interest payment dates shall be January 15 and July 15, respectively.
Principal and interest shall be payable to the persons and in the
manner provided in Sections 2.4 and 2.12 of the Indenture.
SECTION 2.04 The Notes due 2009 shall be payable at the corporate
trust office of the Trustee and at the offices of such paying agents
as the Company may appoint by Company Order in the future.
SECTION 2.05 The Company may redeem the Notes due 2009 at any time,
in whole or in part, at a redemption price equal to the greater of
(i) the principal amount of such Notes due 2009 to be redeemed or
(ii) the sum of the present values of the remaining scheduled payments
of principal and interest thereon,
2
<PAGE>
discounted to the date of redemption on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury
Yield (as defined below) plus 15 basis points, plus in each case
accrued interest thereon to the date of redemption.
"Treasury Yield" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes due 2009 that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes.
"Independent Investment Banker" means Salomon Smith Barney
Inc. or its successor or, if such firm is unwilling or unable to
select the Comparable Treasury Issue, one of the remaining Reference
Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
redemption date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if that release (or any successor release) is not
published or does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations for such redemption date, or (B) if fewer than four
such Reference Treasury Dealer Quotations are obtained, then the
average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debt Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
"Reference Treasury Dealer" means (i) each of Salomon Smith
Barney Inc. and any other primary U.S. Government Securities dealer in
New York City
3
<PAGE>
(a "Primary Treasury Dealer") designated by, and not affiliated with,
Salomon Smith Barney Inc., provided, however, that if Salomon Smith
Barney Inc., or any of its designees shall cease to be a Primary
Treasury Dealer, the Company shall substitute another Primary
Treasury Dealer as a substitute for such entity and (ii) any other
Primary Treasury Dealer selected by the Company
The Notes due 2009 shall not be subject to any sinking fund.
SECTION 2.06 The Notes due 2009 shall be issued in fully registered
form without coupons in denominations of $1,000 and integral multiples
thereof.
SECTION 2.07 The Notes due 2009 shall be issued as unsecured general
obligations of the Company. The Notes due 2009, and all other Notes
issued or to be issued under the Indenture, will not be secured by
first mortgage bonds of the Company and will not be entitled to the
lien of or the benefits provided by the Trust Indenture, dated as of
February 1, 1937, from the Company to Harris Trust and Savings Bank, as
trustee, as supplemented by the supplemental trust indentures,
including the Supplemental and Restated Trust Indenture, dated as of
May 1, 1988.
SECTION 2.08 The Notes due 2009 shall initially be in the form
attached as Exhibit A hereto.
ARTICLE THREE
COVENANTS
SECTION 3.01. So long as there remain outstanding any Notes due 2009,
the Company will not create or suffer to be created or to exist any
mortgage, pledge, security interest, or other lien (collectively,
"Lien") on any of its utility properties or assets now owned or
hereafter acquired to secure any indebtedness, without making effective
provision whereby the Notes due 2009 shall be equally and ratably
secured with any and all such indebtedness and with any other
indebtedness similarly entitled to be equally and ratably secured.
However, this restriction shall not apply to or prevent the creation or
existence of:
(1) the Mortgage securing the Company's First Mortgage Bonds
or any indenture supplemental thereto subjecting any property
to the Lien thereof or confirming the Lien thereof upon any
property, whether now owned or hereafter acquired;
(2) Liens on property existing at the time of acquisition or
construction of such property (or created within one year
after completion of such acquisition or construction), whether
by purchase, merger, construction or otherwise or to secure
the payment of all or any part of the purchase price or
construction cost thereof, including the extension of any such
Liens to
4
<PAGE>
repairs, renewals, replacements, substitutions, betterments,
additions, extensions and improvements then or thereafter made
on the property subject thereto;
(3) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of
Liens permitted by the foregoing clauses (1) and (2);
(4) the pledge of any bonds or other securities at any time
issued under any of the Liens permitted by clauses (1), (2) or
(3);
(5) Permitted Encumbrances; or
(6) Liens on property of any of the Company's Subsidiaries,
including NRG Energy, Inc. and Northern States Power-
Wisconsin.
Further, this restriction shall not apply to or prevent the
creation or existence of leases made, or existing on property
acquired, in the ordinary course of business.
SECTION 3.02 Certain Definitions.
"Mortgage" means the lien of the first mortgage pursuant to
the Trust Indenture, dated as of February 1, 1937, from the Company to
Harris Trust and Savings Bank, as trustee, as supplemented by the
supplemental trust indentures, including the Supplemental and Restated
Trust Indenture, dated as of May 1, 1988 (the "First Mortgage
Indenture"), securing the Company's First Mortgage Bonds.
"Permitted Encumbrances" means any of the following:
(1) Liens of taxes, assessments or governmental charges for the then
current year and taxes, assessments or governmental charges not then
delinquent; Liens for workers' compensation awards and similar
obligations not then delinquent; mechanics', laborers', material men's
and similar Liens not then delinquent; and any of such Liens, whether
or not delinquent, whose validity is at the time being contested in
good faith by the Company;
(2) Liens and charges incidental to construction or current operations
which have not at the time been filed or asserted or the payment of
which has been adequately secured or which, in the opinion of counsel,
are not material in amount;
(3) Liens, securing obligations neither assumed by the Company nor on
account of which any of them customarily pays interest directly or
indirectly, existing, either at the date hereof, or, as to property
hereafter acquired, at the time of acquisition by the Company;
5
<PAGE>
(4) Any right which any municipal or governmental body or agency may
have by virtue of any franchise, license, contract or statute to
purchase, or designate a purchaser of or order the sale of, any
property of the Company upon payment of reasonable compensation
therefor, or to terminate any franchise, license or other rights or to
regulate the property and business of the Company;
(5) The Lien of judgments covered by insurance, or upon appeal and
covered, if necessary, by the filing of an appeal bond, or if not so
covered not exceeding at any one time $1,000,000 in aggregate amount;
(6) Easements or reservations in respect of any property of the Company
for the purpose of roads, pipelines, utility transmission and
distribution lines or other rights-of- way and similar purposes, zoning
ordinances, regulations, reservations, restrictions, covenants, party
wall agreements, conditions of record and other encumbrances (other
than to secure the payment of money), none of which in the opinion of
counsel are such as to interfere with the proper operation and
development of the property affected thereby in the business of the
Company for the use intended;
(7) Any Lien or encumbrance, moneys sufficient for the discharge of
which have been deposited in trust with the Trustee hereunder or with
the trustee or mortgagee under the instrument evidencing such Lien or
encumbrance, with irrevocable authority to the Trustee hereunder or to
such other trustee or mortgagee to apply such moneys to the discharge
of such Lien or encumbrance to the extent required for such purpose;
(8) Any defects of title and any terms, conditions, agreements,
covenants, exceptions and reservations expressed or provided in deeds
or other instruments, respectively, under and by virtue of which the
Company has acquired any property or shall hereafter acquire any
property, none of which, in the opinion of counsel, materially
adversely affects the operation of the properties of the Company;
(9) The pledge of cash or marketable securities for the purpose of
obtaining any indemnity, performance or other similar bonds in the
ordinary course of business, or as security for the payment of taxes or
other assessments being contested in good faith, or for the purpose of
obtaining a stay or discharge in the course of any legal proceedings;
(10) The pledge or assignment in the ordinary course of business of
electricity, gas (either natural or artificial) or steam, accounts
receivable or customers' installment paper;
6
<PAGE>
(11) Rights reserved to or vested in others to take or receive any part
of the electricity, gas (either natural or artificial), steam or any
by-products thereof generated or produced by or from any properties of
the Company or with respect to any other rights concerning electricity,
gas (either natural or artificial) or steam supply, transportation, or
storage which are in use in the ordinary course of the electricity, gas
(either natural or artificial) or steam business;
(12) Any landlord's Lien;
(13) Liens created or assumed by the Company in connection with the
issuance of debt securities, the interest on which is excludable from
the gross income of the holders of such securities pursuant to Section
103 of the Internal Revenue Code of 1986, or any successor section, for
purposes of financing, in whole or in part, the acquisition or
construction of property to be used by the Company, but such Liens
shall be limited to the property so financed (and the real estate on
which such property is to be located);
(14) Liens affixing to property of the Company at the time a Person
consolidates with or merges into, or transfers all or substantially all
of its assets to, the Company, provided that in the opinion of the
Board or Company management (evidenced by a certified Board resolution
or an Officers' Certificate delivered to the Trustee) the property
acquired pursuant to the consolidation, merger or asset transfer is
adequate security for the Lien; and
(15) Liens or encumbrances not otherwise permitted if, at the time of
incurrence and after giving effect thereto, the aggregate of all such
Permitted Encumbrances of the Company secured thereby does not exceed
10% of Tangible Net Worth.
"Tangible Net Worth" means (i) common stockholders' equity
appearing on the most recent balance sheet of the Company (or
consolidated balance sheet of the Company and its Subsidiaries if the
Company then has one or more Subsidiaries the accounts of which are
consolidated with the accounts of the Company) prepared in accordance
with generally accepted accounting principles less (ii) intangible
assets (excluding intangible assets recoverable through rates as
prescribed by applicable regulatory authorities).
7
<PAGE>
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01 The recitals of fact herein and in the Notes due 2009
(except the Trustee's Certificate) shall be taken as statements of the
Company and shall not be construed as made by the Trustee.
SECTION 4.02 This Supplemental Indenture shall be construed in
connection with and as a part of the Indenture.
SECTION 4.03
(a) If any provision of this Supplemental 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 Indenture) by any of the provisions
of Sections 310 to 317, inclusive, of said Act, such required
provisions shall control.
(b) In case any one or more of the provisions contained in this
Supplemental Indenture or in the notes 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 4.04 Whenever in this Supplemental 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 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 4.05
(a) This Supplemental Indenture may be simultaneously executed in
several counterparts, and all said counterparts executed and
delivered, each as an original, shall constitute but one and
the same instrument.
(b) The Table of Contents and the descriptive headings of the
several Articles of this Supplemental Indenture were
formulated, used and inserted in this Supplemental Indenture
for convenience only and shall not be deemed to affect the
meaning or construction of any of the provisions hereof.
8
<PAGE>
IN WITNESS WHEREOF, NORTHERN STATES POWER COMPANY has caused this
Supplemental Indenture to be signed by its President or a Vice President, and
attested by its Secretary or an Assistant Secretary and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, has caused this Supplemental Indenture to be signed by its
President, Vice President, Assistant Vice President or authorized Corporate
Trust Officer, and attested by an authorized officer, this 26th day of July,
1999.
NORTHERN STATES POWER COMPANY
By: /s/ Edward J Mcintyre
-------------------------------
E.J. MCINTYRE, VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
ATTEST:
/s/ John P. Moore, Jr.
- -----------------------
JOHN P. MOORE, JR., CORPORATE SECRETARY
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Timothy P. Mowdy
-------------------------------
TIMOTHY P. MOWDY, CORPORATE
TRUST OFFICER
ATTEST:
/s/ Curtis Schwegman
- ------------------------------
CURTIS SCHWEGMAN
9
<PAGE>
EXHIBIT A
FORM OF
6.875% SENIOR NOTES, SERIES DUE 2009
REGISTERED REGISTERED
THIS NOTE IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITORY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
NORTHERN STATES POWER COMPANY
(INCORPORATED UNDER THE LAWS OF THE STATE OF MINNESOTA)
6.875% SENIOR NOTE, SERIES DUE 2009
CUSIP: 665772 NUMBER:
ORIGINAL ISSUE DATE(S): PRINCIPAL AMOUNT(S):
JULY 26, 1999
INTEREST RATE: 6.875% MATURITY DATE:
AUGUST 1, 2009
<PAGE>
NORTHERN STATES POWER COMPANY, a corporation of the State of
Minnesota (the "COMPANY"), for value received hereby promises to pay to Cede
& Co. or registered assigns, the principal sum of
DOLLARS
on the Maturity Date set forth above, and to pay interest thereon from the
Original Issue Date (or if this Global Security has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which that Original Issue Date
is applicable) set forth above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semiannually in arrears on
the February 1 and August 1 in each year, commencing on February 1, 2000, at the
per annum Interest Rate set forth above, until the principal hereof is paid or
made available for payment. No interest shall accrue on the Maturity Date, so
long as the principal amount of this Global Security is paid on the Maturity
Date. The interest so payable and punctually paid or duly provided for on any
such Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the January 15 or July 15,
as the case may be, next preceding such Interest Payment Date; provided, that
the first Interest Payment Date for any part of this Note, the Original Issue
Date of which is after a Regular Record Date but prior to the applicable
Interest Payment Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date; and provided, that interest payable on the
Maturity Date set forth above or, if applicable, upon redemption or
acceleration, shall be payable to the Person to whom principal shall be payable.
Except as otherwise provided in the Indenture (as defined below), any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and shall be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Securityholders not more than
fifteen days or fewer than ten days prior to such Special Record Date. On or
before Noon, New York City time, or such other time as shall be agreed upon
between the Trustee and the Depository, of the day on which such payment of
interest is due on this Global Security (other than maturity), the Trustee shall
pay to the Depository such interest in same day funds. On or before Noon, New
York City time, or such other time as shall be agreed upon between the Trustee
and the Depository, of the day on which principal, interest payable at maturity
and premium, if any, is due on this Global Security and following receipt of the
necessary funds from the Company, the Trustee shall deposit with the Depository
the amount equal to the principal, interest payable at maturity and premium, if
any, by wire transfer into the account specified by the Depository. As a
condition to the payment, on the Maturity Date or upon redemption or
acceleration, of any part of the principal and applicable premium of this Global
Security, the Depository shall surrender, or cause to be surrendered, this
Global Security to the Trustee, whereupon a new Global Security shall be issued
to the Depository.
2
<PAGE>
This Global Security is a global security in respect of a duly
authorized issue of Senior Notes, Series due 2009 (the "NOTES OF THIS SERIES",
which term includes any Global Securities representing such Notes) of the
Company issued and to be issued under an Indenture dated as of July 1, 1999
between the Company and Norwest Bank Minnesota, National Association, as trustee
(herein called the "TRUSTEE", which term includes any successor Trustee under
the Indenture) and indentures supplemental thereto (collectively, the
"INDENTURE"). Under the Indenture, one or more series of Securities may be
issued and, as used herein, the term "Securities" refers to the Notes of this
Series and any other outstanding series of Securities. Reference is hereby made
for a more complete statement of the respective rights, limitations of rights,
duties and immunities under the Indenture of the Company, the Trustee and the
Securityholders and of the terms upon which the Securities are and are to be
authenticated and delivered. This Global Security has been issued in respect of
the series designated on the first page hereof, limited in aggregate principal
amount to $250,000,000.
Each Note of this Series shall be dated and issued as of the date of
its authentication by the Trustee and shall bear an Original Issue Date or
Dates. Each Security or Global Security issued upon transfer, exchange or
substitution of such Security or Global Security shall bear the Original Issue
Date or Dates of such transferred, exchanged or substituted Security or Global
Security, as the case may be.
The Company may redeem the Notes of this Series at any time, in whole
or in part, at a redemption price equal to the greater of (i) the principal
amount of such Notes of this Series to be redeemed or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon, discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield (as
defined below) plus 15 basis points, plus in each case accrued interest thereon
to the date of redemption.
"Treasury Yield" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes of this Series
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes.
"Independent Investment Banker" means Salomon Smith Barney
Inc. or its successor or, if such firm is unwilling or unable to
select the Comparable
3
<PAGE>
Treasury Issue, one of the remaining Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
redemption date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if that release (or any successor release) is not
published or does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations for such redemption date, or (B) if fewer than four
such Reference Treasury Dealer Quotations are obtained, then the
average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debt Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
"Reference Treasury Dealer" means (i) each of Salomon Smith
Barney Inc. and any other primary U.S. Government Securities dealer in
New York City (a "Primary Treasury Dealer") designated by, and not
affiliated with, Salomon Smith Barney Inc., provided, however, that if
Salomon Smith Barney Inc. or any of its designees shall cease to be a
Primary Treasury Dealer, the Company shall substitute another Primary
Treasury Dealer as a substitute for such entity and (ii) any other
Primary Treasury Dealer selected by the Company.
Notice of redemption will be given by mail to Holders of Notes of this Series
not less than 30 or more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture. In the event of redemption of this Global
Security in part only, a new Global Security or Securities of like tenor and
series for the unredeemed portion hereof will be issued in the name of the
Securityholder hereof upon the surrender hereof.
Interest payments for this Global Security shall be computed and paid
on the basis of a 360-day year of twelve 30-day months. In any case where any
Interest Payment Date or date on which the principal of this Global Security is
required to be paid is not a Business Day, then payment of principal, premium or
interest need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment
Date or date on which the principal of this Global Security is required to be
paid and, in the case of timely payment thereof, no
4
<PAGE>
interest shall accrue for the period from and after such Interest Payment
Date or the date on which the principal of this Global Security is required
to be paid.
The Company, at its option, and subject to the terms and conditions
provided in the Indenture, will be discharged from any and all obligations in
respect of the Securities (except for certain obligations including obligations
to register the transfer or exchange of Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold monies for payment in
trust, all as set forth in the Indenture) if the Company deposits with the
Trustee money, U.S. Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
or a combination of money and U.S. Government Obligations, in any event in an
amount sufficient, without reinvestment, to pay all the principal of and any
premium and interest on the Securities on the dates such payments are due in
accordance with the terms of the Securities.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modifications of the rights and obligations of the
Company and the rights of the Securityholders under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the outstanding Securities. Any such consent or
waiver by the Holder of this Global Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Global Security and of any
Note issued upon the registration of transfer hereof or in exchange therefor or
in lieu thereof whether or not notation of such consent or waiver is made upon
the Note.
As set forth in and subject to the provisions of the Indenture, no
Holder of any Securities will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to such Securities, the Holders of not less than a majority
in principal amount of the outstanding Securities affected by such Event of
Default shall have made written request and offered reasonable indemnity to the
Trustee to institute such proceeding as Trustee and the Trustee shall have
failed to institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on this
Note on or after the respective due dates expressed here.
No reference herein to the Indenture and to provisions of this Global
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Global
5
<PAGE>
Security at the times, places and rates and the coin or currency prescribed
in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, this Global Security may be transferred only as permitted by the
legend hereto.
If at any time the Depository for this Global Security notifies the
Company that it is unwilling or unable to continue as Depository for this Global
Security or if at any time the Depository for this Global Security shall no
longer be eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to this Global Security. If a
successor Depository for this Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election to issue this Note in global form shall no
longer be effective with respect to this Global Security and the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Notes of this Series in exchange for this Global
Security, will authenticate and deliver individual Notes of this Series of like
tenor and terms in definitive form in an aggregate principal amount equal to the
principal amount of this Global Security.
The Company may at any time and in its sole discretion determine that
all Notes of this Series (but not less than all) issued or issuable in the form
of one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event, the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes of this Series in exchange for such Global Security, shall
authenticate and deliver, individual Notes of this Series of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such Global Security or Securities in exchange for such Global
Security or Securities.
Under certain circumstances specified in the Indenture, the Depository
may be required to surrender any two or more Global Securities which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depository a Global Security in
principal amount equal to the aggregate principal amount of, and with all terms
identical to, the Global Securities surrendered thereto and that shall indicate
all Original Issue Dates and the principal amount applicable to each such
Original Issue Date.
The Indenture and the Securities shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
Unless the certificate of authentication hereon has been executed by
the Trustee, directly or through an Authenticating Agent by manual signature of
an authorized officer,
6
<PAGE>
this Global Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
All terms used in this Global Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture unless
otherwise indicated herein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
NORTHERN STATES POWER COMPANY
By:
------------------------------
Dated:
Title:
------------------------------
Attest:
------------------------------
Title:
------------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Securities of
the series herein designated, described
or provided for in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE
By:
- ------------------------------------
AUTHORIZED OFFICER
7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT
MIN ACT -- _____ Custodian ____________
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of ---------------------------------------
survivorship and not as tenants in common State
</TABLE>
Additional abbreviations may also be used
though not in the above list.
--------------------
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- ----------------------------------
the within security and all rights
thereunder, hereby irrevocably
constituting and appointing
____________ attorney to transfer
said security on the books of
the Company, with full power of
substitution in the premises.
Dated:________________________________
NOTICE: The signature to
this assignment must
correspond with the name as
written upon the face of
the within instrument in
every particular, without
alteration or enlargement
or any change whatever.
8
<PAGE>
Exhibit 12.01
NORTHERN STATES POWER COMPANY AND SUBSIDIARY COMPANIES
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(Thousands of dollars)
<TABLE>
<CAPTION>
12-mos Ended Year-end Year-end Year-end Year-end Year-end
Earnings 3/31/99 1998 1997 1996 1995 1994
------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net income $ 277,576 $282,373 $237,320 $274,539 $275,795 $243,475
Add
Taxes based on income (1)
Federal income taxes 114,767 112,003 105,733 153,515 142,492 112,611
State income taxes 23,417 26,005 23,008 40,635 34,988 35,746
Deferred income taxes-net (365) (1,017) (5,902) (30,561) (11,076) (6,100)
Tax credits - net (34,397) (34,554) (26,365) (17,395) (14,409) (13,049)
Foreign income taxes 4,192 2,358 236 616 233 219
Fixed charges 186,489 185,794 169,377 141,961 133,328 115,083
Deduct
Undistributed equity in earnings of
unconsolidated affiliates (2) 8,760 22,754 5,364 25,976 41,870 23,588
-------- -------- -------- -------- -------- --------
Earnings $562,919 $550,208 $498,043 $537,334 $519,481 $464,397
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
Fixed charges:
Interest charges, excluding AFC - debt,
per statement of income 170,739 170,044 154,940 141,961 133,328 115,083
Distributions on redeemable preferred
securities of subsidiary trust 15,750 15,750 14,437 - - -
-------- -------- -------- -------- -------- --------
Total fixed charges $186,489 $185,794 $169,377 $141,961 $133,328 $115,083
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
Ratio of earnings to fixed
charges 3.0 3.0 2.9 3.8 3.9 4.0
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
</TABLE>
(1) Includes income taxes included in Other Income (Expense).
(2) Includes losses of unconsolidated affiliates accounted for under the equity
method.
<PAGE>
Exhibit 12.01
NEW NSP UTILITY SUB
PRO FORMA STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(Thousands of dollars)
<TABLE>
<CAPTION>
12-mos Ended Year-end Year-end Year-end Year-end Year-end
Earnings 3/31/99 1998 1997 1996 1995 1994
------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Net Income $208,171 $209,136 $181,732 $217,833 $202,860 $173,022
Add:
Taxes based on income 119,289 118,967 127,397 132,653 122,584 108,421
Fixed charges 111,336 109,921 115,295 102,207 102,108 87,164
Deduct:
Undistributed equity in earnings of
unconsolidated affiliates 0 0 0 0 0 0
-------- -------- -------- -------- -------- --------
Earnings 438,796 438,024 424,424 452,693 427,552 368,607
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
Fixed charges:
Interest charges, excluding AFC - debt 111,336 109,921 115,295 102,207 102,108 87,164
Distributions on redeemable preferred
subsidiary trust 0 0 0 0 0 0
-------- -------- -------- -------- -------- --------
Total fixed charges $111,336 $109,921 $115,295 $102,207 $102,108 $87,164
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
Ratio of earnings to fixed charges 3.9 4.0 3.7 4.4 4.2 4.2
-------- -------- -------- -------- -------- --------
-------- -------- -------- -------- -------- --------
</TABLE>
