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Exhibit 1.01
NORTHERN STATES POWER COMPANY
(A WISCONSIN 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 Wisconsin 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 September 1, 2000,
from the Company to Firstar Bank, N.A., as trustee (the "Trustee"), as to be
supplemented and amended by a supplemental indenture relating to the Debt
Securities (such Indenture as to be so supplemented and amended being
hereinafter referred to as the "Indenture"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives," as used herein, shall each
be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act") and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form, including a prospectus, for the
registration under the Act of the Debt Securities, which registration
statement has become effective. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement (which date is set forth in
Schedule I hereto). Any such amendment or supplement was filed with
the Commission and any such amendment has become effective. The
Company will file with the 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
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delivered to you and copies of the Prospectus Supplement will be
delivered to you promptly after it is filed with the Commission. Such
registration statement, as amended prior to the date of this
Agreement, and such prospectus, as amended and supplemented prior to
the date of this Agreement and as supplemented by the Prospectus
Supplement, are hereinafter called the "Registration Statement" and
the "Prospectus", respectively. Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") on or before the date of
this Agreement and, if the Company files any document pursuant to the
Exchange Act after the date of this Agreement and prior to the
termination of the offering of the Debt Securities by the
Underwriters, which documents are deemed to be incorporated by
reference into the Prospectus, the term "Prospectus" shall refer also
to said prospectus as supplemented by the documents so filed from and
after the time said documents are filed with the Commission. There are
no contracts or documents of the Company 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 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
thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; PROVIDED
that the Company makes no representations or warranties as to (A) that
part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee or (B) the information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of 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
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statement of a material fact or omit or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading.
(d) PricewaterhouseCoopers LLP, which audited certain
of the financial statements incorporated by reference in the
Registration Statement, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a
part of or incorporated by reference in the Registration Statement or
Prospectus fairly present the financial position of the Company as of
the dates indicated and the results of its operations and changes in
financial position for the periods specified, and have been prepared
in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Wisconsin 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 State of Michigan; 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) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for
subsequent issuance, if any, pursuant to reservations or agreements
referred to therein); the shares of issued and outstanding capital
stock of the Company have been duly and validly issued, are fully paid
and non-assessable and are owned by Xcel Energy Inc., a Minnesota
corporation.
(h) The Company has not 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, the Company has not 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 there has not been any material change in
the capital stock or long-term debt of the Company or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders'
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equity or results of operations of the Company, otherwise than as set
forth or contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this
Agreement and the Indenture, the issuance and delivery of the 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 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 Indenture and delivered and paid
for as provided herein, will be duly issued and will constitute valid
and binding obligations of the Company enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency and other
laws affecting enforcement of creditors' rights, and will be entitled
to the benefits of the Indenture which will be substantially in the
form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized
by the Company and, when duly executed and delivered by the Company,
assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws
affecting enforcement of creditors' rights.
(l) The Public Service Commission of Wisconsin has
issued its order authorizing the issuance and sale of the Debt
Securities on terms consistent with this Agreement. Each other
consent, approval, authorization, order, registration or qualification
of or with any regulatory public body, state or federal, that is, or
will be at the Closing Date, necessary in connection with the issuance
and sale of the Debt Securities pursuant to this Agreement has been or
will be obtained, 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 the
Supplemental and Restated Trust Indenture dated March 1, 1991, from
the Company to Firstar Trust Company (the "First Mortgage Indenture");
as to parts of the Company's property, certain easements, conditions,
restrictions, leases, and similar encumbrances which do not affect the
Company's use of such property in the usual course of its business,
and certain minor defects in titles which are not material, and
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defects in titles to certain properties which are not essential to the
Company's business; and mechanics' lien claims being contested or not
of record or for the satisfaction or discharge of which adequate
provision has been made by the Company pursuant to the First Mortgage
Indenture; and any real property and buildings held under lease by the
Company is held by it under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the
Company.
(n) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the Company
is the subject which, if determined adversely to the Company, would
individually or in the aggregate have a material adverse effect on the
financial position, stockholders' equity or results of operations of
the Company; 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 has all necessary power under
statutory provisions or permits to use its operating electric and gas
properties.
(p) The Company has no "significant subsidiary",
within the meaning of Rule 1.02(w) of Regulation S-X under the Act.
(q) 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.
(r) Except as set forth in the Prospectus Supplement,
the Company (A) is 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) has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and (C) is 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.
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
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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 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 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 third
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 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 their 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
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circumstances under which they were made, not misleading, or if it
shall be necessary at any time to amend or supplement the Prospectus
to comply with the Act or the Exchange Act or the respective rules and
regulations of the Commission thereunder, the Company promptly,
subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will
make a filing with the Commission pursuant to Section 13 or 14 of the
Exchange Act, which will correct such statement or omission or will
effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives a consolidated earnings
statement (which need not be audited) of the Company, for a
twelve-month period beginning after the date of the Prospectus
Supplement filed pursuant to Rule 424(b) and/or Rule 434 under the
Act, as soon as is reasonably practicable after the end of such
period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule
158(c) under the Act), which will satisfy the provision of Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the
Representatives a signed copy of the Registration Statement as
originally filed and of each amendment thereto, including the Form T-1
of the Trustee and all powers of attorney, consents and exhibits filed
therewith (other than exhibits incorporated by reference), and will
deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by
reference therein) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of
and supplements to such documents, in each case as soon as available
and in such quantities as the Representatives may reasonably request.
(e) The Company will furnish such information, execute
such instruments and take such action as may be required to qualify
the 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
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have been disclosed to the Representatives), 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 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 hereto, 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, General Counsel
of Xcel Energy Inc., substantially in the form included as Exhibit A.
(c) The Representatives shall have received from
Gardner, Carton & Douglas, Chicago, Illinois, counsel for the
Underwriters, such opinion or opinions dated the Closing Date with
respect to the incorporation of the Company, this Agreement, the
validity of the Indenture, the Debt Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the
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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
Underwriters the opinion of special Michigan counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company is duly authorized as a foreign
corporation under the laws of the State of Michigan and
has corporate power, right and authority to do business
in the State of Michigan in the manner as set forth in
the Prospectus to the extent it is authorized to transact
such business in the State of Wisconsin, and to own
property in the State of Michigan in the manner set forth
in the Prospectus;
(ii) the Company has all necessary power
under Michigan statutory provisions and has all necessary
franchises to use its operating electric and gas
properties in Michigan, except that no determination has
been made whether the Company or its Michigan predecessor
has secured permits and approvals, if any, required by
the Wetlands Protection Act, 1979 PA 302, and except that
the Company does not have electric franchises in the
cities of Ironwood, Bessemer and Wakefield, County of
Gogebic, State of Michigan. However, counsel for the
Company, Aberg, Bell, Blake & Metzner, rendered an
opinion on April 19, 1968, that municipal franchises were
not required for the cities of Ironwood and Bessemer; and
(iii) No approval, authorization, consent,
certificate or order of any Michigan commission or
regulatory authority is required in connection with the
issuance and sale of the Debt Securities by the Company
to the Underwriters as provided in this Agreement except
as may be required under state securities laws.
(e) 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
paragraph (a) and (i) of this Section 6 and to the further effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of
the Company in this Agreement are true and correct on and
as of the Closing Date with the same effect as if made on
the Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the
Closing Date, and
(ii) there has been no material adverse
change in the condition of the Company, financial or
otherwise, or in the earnings, affairs or business
prospects of the Company, whether or not arising in the
ordinary course of business, from that set forth or
contemplated by the Registration Statement or Prospectus
Supplement.
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(f) 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 financial statements and financial statement
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 thereunder, (iii) they have performed
limited procedures, not constituting an audit, including a reading of
the latest available interim financial statements of the Company, a
reading of the minutes of meetings of the Board of Directors,
committees thereof, and of the Shareholders, of the Company since the
date of the most recent audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company 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 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 financial statements
of the Company included or incorporated by reference in the
Registration Statement or Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations of the Commission
applicable to Form 10-Q; (b) with respect to the period subsequent to
the date of the most recent financial statements included or
incorporated by reference in the Prospectus and except as set forth in
or contemplated by the Registration Statement or Prospectus, there
were any changes, at a specified date not more than five business days
prior to the date of the letter, in the capital stock of the Company,
increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company 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, or net income, except in all
instances for changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not deemed
necessary by the Representatives; and (iv) they have carried out
specified procedures performed for the purpose of comparing certain
specified financial information and percentages (which is limited to
financial information derived from general accounting records of the
Company) included or incorporated by reference in the Registration
Statement and Prospectus with indicated amounts in the financial
statements or accounting records of the Company and (excluding any
questions of legal interpretation) have found such information and
percentages to be in agreement with the relevant accounting and
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financial information of the Company referred to in such letter in the
description of the procedures performed by them.
(g) 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 (f) 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.
(h) 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.
(i) (i) The Company shall not 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, the Company shall not 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 there shall not have been any change in
the capital stock or long-term debt of the Company or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company 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
Representatives 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.
(j) 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.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as they may reasonably request.
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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 facsimile transmission 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 Representatives, threatened.
(b) The order of the Public Service Commission of Wisconsin
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Debt Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Debt Securities.
9. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Debt Securities as originally filed or in any amendment thereof), or in the
Prospectus or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with
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<PAGE>
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use therein and PROVIDED FURTHER that such
indemnity with respect to a prospectus included in the registration statement or
any amendment thereto prior to the supplementing thereof with the Prospectus
Supplement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Debt Securities which are the subject
thereof if such person was not sent or given a copy of the Prospectus (but
without the documents incorporated by reference therein) at or prior to the
confirmation of the sale of such Debt Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such prospectus was corrected in the Prospectus,
provided that the Company shall have delivered the Prospectus, in a timely
manner and in sufficient quantities to permit such delivery by the Underwriters.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who has signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters but only with reference to written
information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the
documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to 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
13
<PAGE>
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
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 paragraphs (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 indemnifying 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 paragraph (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 hand 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 paragraph (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case
as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The
14
<PAGE>
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this paragraph (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 paragraph (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
paragraph (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 paragraph (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 paragraph (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 "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves or any party or
other parties to purchase such Unpurchased Debt Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Debt Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Unpurchased Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Unpurchased Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Unpurchased
Debt Securities, the Representatives or the Company shall have the right to
postpone the Closing Date for such Unpurchased Debt Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the
15
<PAGE>
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 paragraph (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 paragraph (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 paragraph (b) above, or if the Company shall not
exercise the right described in paragraph (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, Wisconsin or New York State authorities, (iii) if
trading in any securities of the Company shall have been suspended or halted, or
(iv) if there shall have occurred any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a war or
national emergency or any other calamity or crisis the effect of which on the
financial markets in the United States is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the manner
contemplated in the Prospectus.
16
<PAGE>
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 I
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at Eau Claire Office Building, 1414 West Hamilton Ave., P.O. Box
8, Eau Claire, Wisconsin 54702, 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 Wisconsin.
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.
17
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
BY /s/ E.J. MCINTYRE
--------------------------
E.J. McIntyre
Vice President and CFO
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
BY /s/ YUKARI SAEGUSA
--------------------------------------
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL UNDERWRITERS, IF
ANY, NAMED IN SCHEDULE II TO THE FOREGOING
AGREEMENT.
18
<PAGE>
SCHEDULE I
Underwriting Agreement dated September 25, 2000
Registration Statement No. 333-85267
Representatives and Addresses:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Debt Securities:
Designation: 7.64% Senior Notes, Series due 2008
Principal Amount: $80,000,000
Supplemental Indenture dated as of September 15, 2000
Date of Maturity: October 1, 2008
Interest Rate: 7.64% per annum, payable April 1 and October 1 of each
year, commencing April 1, 2001
Purchase Price: 99.375% of the principal amount thereof, PLUS accrued
interest, if any, from October 2, 2000 to the date of payment and
delivery.
Public Offering Price: 100% of the principal amount thereof, plus
accrued interest, if any, from October 2, 2000 to the date of payment
and delivery.
Redemption Terms:
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
---
19
<PAGE>
Closing Date and Location: October 2, 2000
Northern States Power Company
800 Nicollet Mall, Suite 3000
Minneapolis, MN 55401
Office for Delivery of Debt Securities:
The Depository Trust Company
c/o Firstar Bank, N.A.
1555 N. River Center Drive, Suite 301
Milwaukee, WI 53212
Office for Payment of Debt Securities:
Northern States Power Company
800 Nicollet Mall, Suite 3000
Minneapolis, MN 55401
Office for Checking of Debt Securities:
The Depository Trust Company
c/o Firstar Bank, N.A.
1555 N. River Center Drive, Suite 301
Milwaukee, WI 5321
20
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
NAME OF UNDERWRITER PRINCIPAL AMOUNT OF
------------------- DEBT SECURITIES
---------------
<S> <C>
Salomon Smith Barney Inc. 80,000,000
---------------
Total .........................................................$80,000,000
===============
</TABLE>
<PAGE>
EXHIBIT A
FORM OF OPINION OF GARY R. JOHNSON
RE: $ 80,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE 2008,7.64%
OF NORTHERN STATES POWER COMPANY, A WISCONSIN CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Northern States Power Company, a Wisconsin corporation,
herein called the "Company," with respect to the issue and sale by the Company
of $80,000,000 principal amount of Debt Securities, Series due 2008, 7.64%
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 September 25,
2000 (the "Underwriting Agreement") between you and the Company relating to your
purchase of the Debt Securities, and have either participated in the preparation
of or examined the Indenture dated September 1, 2000 and the Supplemental
Indenture dated as of September 15, 2000, creating the Debt Securities, all from
the Company to Firstar Bank, N.A., as Debt Trustee (which Indenture and
Supplemental Indenture are herein collectively called the "Indenture"). I have
also participated in the preparation of or examined the registration statement
and the accompanying prospectuses and any supplements thereto, as filed under
the Securities Act of 1933, as amended (herein called the "Act"), with respect
to the Debt Securities. The terms "Registration Statement" and "Prospectus" as
used herein shall have the meanings ascribed to such terms by the Underwriting
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 Wisconsin; has corporate power, right, and
authority to do business and to own property in the State of Wisconsin
in the manner and as set forth in the Prospectus; has no "significant
subsidiaries" within the meaning of Rule 1.02(w) of Regulation S-X
under the Act; and has corporate power, right, and authority to make
the 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, are fully paid
and non-assessable and are owned by Xcel Energy Inc., a Minnesota
corporation;
3. The Underwriting Agreement has been duly authorized,
executed, and delivered by the Company and is a valid and binding
obligation of the Company, except
<PAGE>
to the extent that the provisions for indemnities in the Underwriting
Agreement may be held to be unenforceable as against public policy;
4. 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
similar laws affecting enforcement of creditor's rights;
5. 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 Underwriting Agreement has been duly authorized
by the Company; the statements made under the captions "Description of
Securities" in the Prospectus and "Supplemental Description of
Securities" in the Prospectus Supplement, 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 are enforceable in
accordance with their terms;
6. The consummation of the transactions contemplated in the
Underwriting 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 government body having jurisdiction over
the Company or its property;
7. The Registration Statement has become effective under the
Act. The Prospectus Supplement (as defined in the Underwriting
Agreement) has been filed pursuant to Rule 424(b) under the Act and no
proceedings for a stop order have been instituted or to my knowledge
are pending or threatened under Section 8(d) of the Act; the Public
Service Commission of Wisconsin has issued its order authorizing the
issuance and sale of the Debt Securities; the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended; 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 Underwriting Agreement, except as may be required by
"blue sky" or state securities laws;
8. At the time the Registration Statement became effective and
at the date of the Underwriting Agreement, the Registration Statement
(other than the financial statements and supporting schedules included
therein, as to which no opinion is rendered)
2
<PAGE>
complied as to form in all material respects with the requirements of
the Act, the Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder;
9. 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;
10. The Company has all necessary power under statutory
provisions and permits to use its operating electric and gas
properties; and
11. All statements contained in the Registration Statement and
Prospectus purporting to set forth my opinion or to be based upon my
opinion 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 up on and do
not assume responsibility for and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the Registration Statement or
the Prospectus (except as to matters set forth in Paragraphs 8 and 11 above),
nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective or at the date of the
Underwriting Agreement 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 at the date of
the Underwriting Agreement or as of 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 the light of the circumstances under
which they were made, not misleading.
In giving opinions as to conformity to the laws of States other than
Minnesota, I have 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
3
