EXHIBIT 1.01
NORTHERN STATES POWER COMPANY
(a Minnesota corporation)
UNDERWRITING AGREEMENT
July 8, 2002
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 as "Firm Principal Amount" in
Schedule I hereto (the "Firm Debt Securities") and at the election of the
Underwriters up to an aggregate principal amount specified as "Option Principal
Amount" in Schedule I hereto (the "Option Debt Securities"). The Firm Debt
Securities and the Option Debt Securities that the Underwriters elect to
purchase pursuant to Section 2 are collectively referred to herein as the "Debt
Securities" and are to be issued under its Indenture, dated as of July 1, 1999,
from the Company to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
successor trustee (the "Trustee"), as previously amended and supplemented and 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 "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. Each prospectus
used before the registration statement became effective, and
any prospectus that omitted the offering terms that was used
after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary
prospectus". 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 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
Statement of Eligibility (Form T-1) under the Trust Indenture
Act of the Trustee or (B) the information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the
Registration Statement or Prospectus. Each preliminary
prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the Act,
complied when so filed in all material respects with the rules
under the Act, and each
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preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and
any documents so filed and incorporated by reference
subsequent to the date of this Agreement will, when they are
filed with the Commission, conform in all material respects to
the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and none of such
documents include or will include any untrue statement of a
material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading.
(d) PricewaterhouseCoopers LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which
audited the financial statements incorporated by reference in
the Registration Statement, and Deloitte & Touche LLP, which
has reviewed interim financial statements, 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 and its consolidated
subsidiaries filed as a part of or incorporated by reference
in the Registration Statement or Prospectus fairly present the
financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of
their operations and changes in financial position for the
periods specified, and have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as
disclosed in the Prospectus Supplement.
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Minnesota with due corporate authority to carry on the
business in which it is engaged and to own and operate the
properties used by it in such business, as described in the
Prospectus; the Company is qualified to do business as a
foreign corporation and is in good standing under the laws of
the States of North Dakota and South Dakota; and the Company
is not required by the nature of its business to be licensed
or qualified as a foreign corporation in any other state or
jurisdiction; and, except as set forth in the Prospectus
Supplement, the Company has all material licenses and
approvals required at the date hereof to conduct its business.
(g) The Company has no subsidiaries which would be deemed
significant subsidiaries under Regulation S-X.
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(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus Supplement; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus Supplement, neither
the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business,
which are material to the Company and its subsidiaries, and
there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in
the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the 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 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.
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(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 the Company's first mortgage indenture; taxes and
assessments not yet delinquent; 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; and any real property and buildings held
under lease by the Company is held by it under valid,
subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company.
(n) Other than as set forth or contemplated in the Prospectus as
of the date hereof, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(o) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(p) Except as set forth in the Prospectus Supplement, the Company
and its subsidiaries (A) are in compliance with any and all
applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (B) have
received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct its
respective business and (C) are in compliance with all terms
and conditions of any such permits, licenses or approvals,
except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, (i)
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 Firm Debt Securities set forth opposite their respective
names in Schedule II hereto and (ii) in the event and to the extent
that the Underwriters shall exercise the election to purchase Option
Debt Securities as hereinafter provided in this Section 2, the Company
agrees to sell to the Representatives and each other Underwriter, and
the Representatives and each other Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set
forth in Schedule I hereto, the portion of the principal amount of
Option Debt Securities as to which such election shall have been
exercised (adjusted by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. so as to ensure
issuance of authorized denominations) determined by multiplying such
amount by a fraction, the numerator of which is the maximum amount of
Option Debt Securities set forth opposite such Underwriter's name in
Schedule II hereto and the denominator of which is the maximum amount
of Debt Securities which all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the option to purchase,
at their election, up to the aggregate principal amount of Option Debt
Securities set forth in Schedule I hereto and identified as Option Principal
Amount, at the purchase price set forth in Schedule I hereto, for the sole
purpose of covering over-allotments in the sale of the Firm Debt Securities.
Such election may be exercised only by written notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. to the Company given within the period of 30 calendar days after the date
of this Agreement, which notice shall set forth the aggregate amount of Option
Debt Securities to be purchased and the date on which such Option Debt
Securities are to be delivered, as determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (but
in no event earlier than the First Closing Date, as defined in Section 3, or,
unless ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and the Company otherwise agree in writing,
earlier than two or later than 10 business days after the date of such notice).
3. Delivery and Payment. Delivery of and payment for the Firm 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. Delivery of and
payment for the Option Debt Securities shall be made at the place, date
and time specified by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. in the written notice
of election given by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. pursuant to Section 2,
or such other time and date as ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and the
Company may agree upon in writing. Such time and date for delivery of
the Firm Debt Securities is hereinafter called the "First Closing
Date"; such time and date for delivery of the Option Debt Securities,
if not the First Closing Date, is hereinafter called the "Second
Closing Date"; and each such time and date for delivery is hereinafter
called a "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
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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. Unless otherwise indicated on
Schedule I, the Debt Securities will be registered in the name of Cede
& Co., as nominee of The Depository Trust Company and in the principal
amounts set forth in Schedule II hereto. 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 Form 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 for 30 days, the Company will not offer, sell,
or otherwise dispose of any debt securities of the Company
(except the Option Debt Securities or 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
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the preparing, printing and filing of the Registration Statement
(including all exhibits thereto), the preliminary prospectus, 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 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 to be
delivered at each Closing Date 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 such 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
such Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and
General Counsel of the Company, substantially in the form
included as Exhibit A.
(c) The Representatives shall have received from ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, Chicago, Illinois, counsel for the
Underwriters, such opinion or opinions dated such 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
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 such 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:
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(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of such
Closing Date with the same effect as if made on such
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
such 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 each of
PricewaterhouseCoopers LLP and Deloitte & Touche LLP,
independent public accountants for the Company (dated the date
of this Agreement and each 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) as to PricewaterhouseCoopers LLP,
in their opinion, the consolidated financial statements and
supplemental schedules for the year ended December 31, 1999
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) as to Deloitte & Touche LLP,
that 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 Shareholder 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 consolidated financial statements of the Company
included or incorporated by reference in the Registration
Statement or Prospectus for them to be in conformity with
generally accepted accounting principles or any unaudited
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange
Act and the rules and regulations of the Commission applicable
to Form 10-Q; (b) with respect to the period subsequent to the
date of the most recent financial statements included or
incorporated by reference in the Prospectus and except as set
forth in or contemplated by the Registration Statement or
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the capital stock of the Company, increases in long-term
debt or
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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 or net income of the Company and
its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Representatives; and (iv) as to Deloitte &
Touche LLP, that they have carried out specified procedures
performed for the purpose of comparing certain specified
financial information and percentages (which is limited to
financial information derived from general accounting records
of the Company) included or incorporated by reference in the
Registration Statement and Prospectus with indicated amounts
in the financial statements or accounting records of the
Company and (excluding any questions of legal interpretation)
have found such information and percentages to be in agreement
with the relevant accounting and financial information of the
Company referred to in such letter in the description of the
procedures performed by them.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there
shall not have been any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section
6 which makes it impractical or inadvisable in the judgment of
the Representatives to proceed with the public offering or the
delivery of the Debt Securities on the terms and in the manner
contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have
occurred, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible
change, in the rating accorded the Company's debt securities
or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus Supplement, and (ii)
since the date of this Agreement, neither the Company nor any
of its subsidiaries shall have incurred any liabilities or
obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which
are material to the Company and its subsidiaries, and there
shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change,
in or affecting the
11
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries otherwise than as set forth or contemplated in
the Prospectus Supplement, the effect of which, in any such
case described in clause (i) or (ii) is in the judgment of the
Underwriters so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Debt Securities to be
delivered on such Closing Date 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 such 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 First Closing Date, and with respect
to the Option Debt Securities, the Second 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 such 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 First Closing Date, and with respect
to the Option Debt Securities, the Second 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
12
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, including the reasonable fees and disbursements of counsel
for the Underwriters.
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.
13
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement and each
person, if any, who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but
only with reference to written information furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the documents referred
to in the foregoing indemnity, and agrees to reimburse each
such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 9. In
case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by
written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that if the
defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties
which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified
party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to
the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the
expenses of more than one separate counsel and one local
counsel, approved by the Representatives in the case of
subparagraph (a), representing the indemnified parties under
subparagraphs (a) or (b), as the case may be, who are parties
to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense
14
of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters
on the other from the offering of the Debt Securities. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to 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)
15
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, on either Closing Date, any Underwriter shall default in
its obligation to purchase the Debt Securities which it has
agreed to purchase on such Closing Date hereunder (in this
Section called the "Unpurchased Debt Securities"), the
Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Unpurchased
Debt Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such
Unpurchased Debt Securities, then the Company shall be
entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the
Representatives to purchase such Unpurchased Debt Securities
on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Unpurchased
Debt Securities, or the Company notifies the Representatives
that it has so arranged for the purchase of such Unpurchased
Debt Securities, the Representatives or the Company shall have
the right to postpone the Closing Date for such Unpurchased
Debt Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this
Section with like effect as if such 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 to be purchased on
such Closing Date, then the Company shall
16
have the right to require each non-defaulting Underwriter to
purchase the principal amount of Debt Securities which such
Underwriter agreed to purchase on such Closing Date hereunder
and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount
of Firm Debt Securities which such Underwriter agreed to
purchase hereunder) of the Unpurchased Debt Securities to be
purchased on such Closing Date 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 to be purchased on such Closing
Date, 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 (or, with respect to the
Second Closing Date, the obligations of the Underwriters to
purchase, and of the Company to sell, the Option Debt
Securities) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the
Underwriters as provided in Section 5 hereof and the indemnity
and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
11. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to
the Company prior to delivery of and payment for all Debt Securities,
if prior to such time (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) if a banking
moratorium shall have been declared either by Federal, Minnesota or New
York State authorities, (iii) if trading in any securities of the
Company shall have been suspended or halted, or (iv) if there shall
have occurred any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a war or
national emergency or any other calamity or crisis the effect of which
on the financial markets in the United States is such as to make it, in
the judgment of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Debt Securities on
the terms and in the manner contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of their respective officers,
directors or controlling persons within the meaning of the Act, and
will survive delivery of and
17
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 ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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.
18
Very truly yours,
NORTHERN STATES POWER COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Director
For itself or themselves and as Representatives of the several
Underwriters, if any, named in Schedule II to the foregoing Agreement.
19
SCHEDULE I
Underwriting Agreement dated July 8, 2002
Registration Statement No. 333-59098
Representatives and Addresses: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Debt Securities:
Designation: 8.00% Notes, Series due 2042
Firm Principal Amount: $175,000,000
Option Principal Amount: $26,250,000
Supplemental Indenture dated as of: July 1, 2002
Date of Maturity: July 1, 2042
Interest Rate: 8.00% per annum, payable January 1, April 1,
July 1 and October 1 of each year,
commencing October 1, 2002.
Purchase Price: 96.85% of the principal amount thereof, plus
accrued interest from July 11, 2002 to the
date of payment and delivery.
Public Offering Price: 100.00% of the principal amount thereof,
plus accrued interest from July 11, 2002 to
the date of payment and delivery.
Redemption Provisions:
On or after July 11, 2007, the Company may
redeem the Notes due 2042 at any time, in
whole or in part, at a redemption price
equal to the principal amount of such Notes
due 2042 to be redeemed, plus in each case
accrued interest thereon to the date of
redemption.
Payment to be made in federal (same day) funds. X Yes No
----- ----
Closing Date and Location: July 11, 2002
Xcel Energy Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Office for Delivery of Debt Securities: The Depository Trust Company
c/o Wells Fargo Bank Minnesota,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Office for Payment of Debt Securities: Northern States Power Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Office for Checking of Debt Securities: The Depository Trust Company
c/o Wells Fargo Bank Minnesota,
National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SCHEDULE II
NAME AMOUNT OF FIRM AMOUNT OF OPTION
DEBT SECURITIES DEBT SECURITIES
--------------- ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $ 26,062,500 $ 3,909,375
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 25,000,000 3,750,000
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 25,000,000 3,750,000
Prudential Securities Incorporated 25,000,000 3,750,000
UBS Warburg LLC 25,000,000 3,750,000
Wachovia Securities, Inc. 25,000,000 3,750,000
ABN AMRO Incorporated 1,100,000 165,000
Banc of America Securities LLC 1,100,000 165,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 1,100,000 165,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. 1,100,000 165,000
CIBC World Markets Corp. 1,100,000 165,000
Credit Suisse First Boston Corporation 1,100,000 165,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. 1,100,000 165,000
Deutche Bank Alex. ▇▇▇▇▇ Inc. 1,100,000 165,000
H&R BLOCK Financial Advisors, Inc. 1,100,000 165,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 1,100,000 165,000
McDonald Investments Inc., a KeyCorp Company 1,100,000 165,000
Quick & ▇▇▇▇▇▇, Inc. 1,100,000 165,000
TD Securities (USA) Inc. 1,100,000 165,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 1,100,000 165,000
▇▇▇▇▇ Fargo ▇▇▇ ▇▇▇▇▇▇ LLC 1,100,000 165,000
BNY Capital Markets, Inc. 437,500 65,625
Barclays Capital Inc. 437,500 65,625
▇.▇. ▇▇▇▇ & Associates, Inc. 437,500 65,625
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 437,500 65,625
Fahenstock & Co. Inc. 437,500 65,625
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated 437,500 65,625
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 437,500 65,625
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC 437,500 65,625
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 437,500 65,625
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 437,500 65,625
▇▇▇▇, ▇▇▇▇ & Co. LLC 437,500 65,625
Southwest Securities, Inc. 437,500 65,625
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 437,500 65,625
Tokyo-Mitsubishi International plc 437,500 65,625
Wedbush ▇▇▇▇▇▇ Securities, Inc. 437,500 65,625
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company L.L.C. 437,500 65,625
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 437,500 65,625
--------------- --------------
Total............................................. $ 175,000,000 $ 26,250,000
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
RE: $175,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE 2042, 8.00%
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 $175,000,000 principal amount of Debt Securities, Series due 2042, 8.00%
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 July 8, 2002, 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 July 1, 1999, as previously amended and supplemented, and
the Supplemental Indenture dated as of July 1, 2002, creating the Debt
Securities, all from the Company to ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as successor Trustee (which Indenture, as so amended and
supplemented, and Supplemental Indenture are herein collectively called the
"Indenture"). I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Debt Securities. Whenever the
terms "Registration Statement" or "Prospectus" are used herein, they shall have
the respective meanings set forth in the Agreement. My examination has extended
to all statutes, records, instruments, and documents which I have deemed
necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under
the laws of the State of Minnesota; has corporate
power, right, and authority to do business and to own
property in the states of Minnesota, North Dakota and
South Dakota in the manner and as set forth in the
Prospectus; has corporate power, right and authority
to own securities of its subsidiaries; and has
corporate power, right, and authority to make the
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;
3. The Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding
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obligation of the Company, except to the extent that
the provisions for indemnities 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 laws affecting enforcement of creditors'
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
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 4 above with respect to the
enforceability of certain provisions of the
Indenture) are enforceable in accordance with their
terms;
6. 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 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;
7. 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
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Public Utilities Commission has issued its order
approving 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;
8. 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;
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; and
10. 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 8 and 10
above) nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus as of the date of the Agreement or at the date hereof
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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In giving 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:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and General Counsel
Northern States Power Company
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