EXHIBIT 1(B)
[NAME OF TRUST]
PREFERRED TRUST SECURITIES
UNDERWRITING AGREEMENT
[ , 200 ]
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New York, New York
[Insert Name(s)
and Address(es)
of Underwriters]
Dear Sirs:
ALLETE (legally incorporated as Minnesota Power, Inc.), a corporation
incorporated under the laws of Minnesota (the "Company"), and its financing
subsidiary, [Name of Trust], a Delaware business trust (the "Trust," and
hereinafter, together with the Company, the "Offerors"), propose for the Trust
to issue and sell severally to the underwriters named in Schedule I hereto (the
"Underwriters") the Trust's preferred trust securities of the series
designation, with the terms and in the liquidated preference amount specified in
Schedule II hereto (the "Preferred Trust Securities"). The Offerors propose for
the Trust to issue the Preferred Trust Securities pursuant to an Amended and
Restated Trust Agreement, to be dated as of , 200 , among The Bank
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of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, certain employees of the Company, as Administrative Trustees, and the
several Holders as defined therein in substantially the form heretofore
delivered to you [as the Representatives] (the "Trust Agreement"). In connection
with the issuance of the Preferred Trust Securities, the Company proposes (i) to
issue its Junior Subordinated Debentures, Series (the
"Debentures") pursuant to an Indenture, dated as of , , between
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the Company and The Bank of New York, as trustee (the "Indenture") and (ii) to
issue a guarantee relating to the Preferred Trust Securities to the extent
described in the Prospectus (as defined below) (the "Guarantee").
1. Sale and Purchase. The Trust agrees to issue and sell to each of
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the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, the respective number of Preferred Trust
Securities set forth opposite the name of such Underwriter in Schedule I hereto
at the purchase price or prices set forth in Schedule II hereto (the "Purchase
Price"). The obligations of the Trust and the Underwriters under this Agreement
are undertaken on the basis of the representations and are subject to the
conditions in this Agreement.
2. Payment and Delivery. Delivery of the Preferred Trust Securities to
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the several Underwriters against payment of the aggregate Purchase Price
therefor by wire transfer in Federal funds shall be made at the offices of
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00
a.m., New York City time, on [ , 200 ], or at such time, date and
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place as may be agreed upon by the Company and the Underwriters (the "Closing
Date"). The Preferred Trust Securities shall be delivered to The Depository
Trust Company or to The Bank of New York, as custodian for The Depository Trust
Company, in definitive fully-registered global form without coupons registered
in the name of Cede & Co. for the respective accounts specified by the
Underwriters not later than the close of business on the business day preceding
the Closing Date. [If no such request is received by said time, the Trust shall
have the right to deliver the Preferred Trust Securities registered in the name
of the Underwriters in such denominations as the Trust may determine.] The
Preferred Trust Securities shall be made available to the Underwriters at the
offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP for checking purposes not later than 2:00
p.m., New York City time, on the business day immediately preceding the Closing
Date.
3. Registration Statement and Prospectus; Public Offering. The
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Company, ALLETE Capital II and ALLETE Capital III have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
on March , 2001 (Registration Nos. 333- and 333- -01) for the
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registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations adopted by the Commission under
the Securities Act (the "Rules and Regulations"), of $500,000,000 aggregate
amount of (i) the Company's Common Stock, without par value, and related
preferred shares purchase rights, (ii) one or more series of the Company's first
mortgage bonds, (iii) the Company's unsecured debt securities, (iv) the
preferred trust securities (the "Trust Securities") of ALLETE Capital II and
ALLETE Capital III and (v) an equal principal amount of the Company's junior
subordinated debentures and guarantees and other obligations of the Company in
respect of such Trust Securities. Such registration statement ("Registration
Statement No. 333- ") was declared effective by the Commission on ,
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2001. No stop order suspending the effectiveness of such registration statement
is in effect and no proceedings for such purpose are pending or threatened
before or threatened by the Commission. The Company has also filed with the
Commission a registration statement on Form S-3 on May 8, 1998 (Registration No.
333-52161) for the registration under the Securities Act and the Rules and
Regulations of 3,000,000 shares of the Company's Common Stock, without par
value, and related preferred shares purchase rights, of which all but 1,814,000
shares (as adjusted for the Company Common Stock split on ) of Common
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Stock and related rights have been previously issued. Such registration
statement ("Registration Statement No. 333-52161") was declared effective by the
Commission on May 18, 1998. In addition, the Company has filed with the
Commission a registration statement on Form S-3 on July 21, 2000 (Registration
No. 333-41882) for the registration under the Securities Act and the Rules and
Regulations of $400,000,000 aggregate principal amount of the Company's first
mortgage bonds and unsecured debt securities, of which all but $25,000,000
aggregate principal amount of first mortgage bonds and unsecured debt securities
have been previously issued. Such registration statement ("Registration
Statement No. 333-41882") was declared effective by the Commission on August 7,
2000. References herein to the term "Registration Statement" as of any date
shall be deemed to refer to each of Registration Statement No. 333-41882,
Registration Statement No. 333-52161 and Registration No. 333- , each as
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amended and supplemented to such date, including financial statements and all
exhibits, and all documents incorporated by reference therein as of such date
pursuant to Item 12 of Form S-3 ("Incorporated Documents") and filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided that
if the Company files a registration statement with respect to securities
registered under Registration Statement No. 333-41882, Registration Statement
No. 333-52161 and Registration Statement No. 333- with the Commission
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pursuant to Rule 462(b) of the Securities Act (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration Statement"
shall be deemed to included the Rule 462(b) Registration Statement. References
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herein to the term "Prospectus" as of any given date shall be deemed to refer to
the combined prospectus, including any preliminary prospectus, relating to the
securities registered under Registration Statement No. 333- and the
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securities registered and remaining unissued under Registration Statement No.
333-41882 and Registration Statement No. 333-52161 that forms a part of
Registration Statement No. 333- , as amended or supplemented as of such date
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(other than by amendments or supplements relating to securities other than the
Securities), including all Incorporated Documents as of such date and including
any prospectus supplement relating to the Securities. The term "preliminary
prospectus" means any preliminary prospectus (as referred to in Rule 430 of the
Rules and Regulations) included at any time as a part of such registration
statement. Copies of such registration statement and any amendments thereto and
of each preliminary prospectus included as part of such registration statement
have been delivered to the Underwriters. References to "Effective Date" shall be
deemed to refer to the later of the time and date Registration Statement No.
333- , any post-effective amendment to Registration Statement No. 333-
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or any Rule 462(b) Registration Statement was declared effective or the time and
date of the filing thereafter of the Company's most recent Annual Report on Form
10-K if such filing is made prior to the Closing Date, as hereinafter defined.
For purposes of this Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior to the Closing Date
shall be deemed an amendment or supplement to the Registration Statement and the
Prospectus and any reference herein to "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus includes the filing of any document under the Exchange Act after the
Effective Date or the date of any preliminary prospectus or the Prospectus, as
the case may be, and incorporated in such document by reference if such filing
is made prior to the Closing Date.
The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Trust Securities, as described in the Prospectus, as
soon after the date of this Agreement as the Underwriters deem advisable. The
Offerors are further advised by the Underwriters that the Preferred Trust
Securities are to be offered to the public initially at % of their
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liquidation preference amount (the "Public Offering Price") plus accrued
distributions, if any, from , 200 to the date of payment and
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delivery and to certain dealers selected by the Underwriters at a price that
represents a concession not in excess of % of their liquidation preference
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amount under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of % of their
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liquidation preference amount, to any Underwriter or to certain other dealers.
The Offerors confirm that the Underwriters and dealers have been authorized to
distribute each preliminary prospectus, if any, and are authorized to distribute
the Prospectus and any amendments or supplements to it.
4. Representations of the Offerors. The Offerors represent to the
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Underwriters as follows:
(a) The Offerors meet the requirements for use of Form S-3 under the
Securities Act.
(b) On the Effective Date, and at the Closing Date, the Registration
Statement and, at the date of the filing of the Prospectus pursuant to Rule 424
under the Rules and Regulations, and at the Closing Date, the Prospectus, as
each may be amended or supplemented, and the Trust Agreement, Indenture and the
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Guarantee fully complied or will fully comply in all material respects with the
applicable provisions of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the Rules and Regulations, or pursuant
to the Rules and Regulations will be deemed to comply therewith. On the
Effective Date and the Closing Date the Registration Statement, as it may be
amended or supplemented, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date of filing
of the Prospectus and the Closing Date, the Prospectus, as it may be amended or
supplemented, will not contain an untrue statement of a material fact or omit 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; and on
said date of filing of the Prospectus and the Closing Date, the Incorporated
Documents will fully comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the Commission
under the Exchange Act (the "Exchange Act Rules and Regulations"), and, when
read together with the Prospectus, as it may be amended or supplemented, will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The foregoing representations do not apply to (1) statements or
omissions made in reliance on and in conformity with information relating to the
Underwriters furnished in writing to the Company or the Trust by any Underwriter
expressly for use in the Registration Statement or the Prospectus, as they may
be amended or supplemented, or (2) the portion of the Registration Statement
constituting the respective Statements of Eligibility, or amendments thereto,
under the Trust Indenture Act except statements or omissions made in reliance on
and in conformity with information furnished in writing to the trustees by or on
behalf of the Company or the Trust for use in such Statements of Eligibility or
any amendments thereto. For purposes of this Agreement, [indicate topics
addressed and location in Prospectus] constitute the only information relating
to the Underwriters furnished in writing to the Offerors expressly for inclusion
in any preliminary prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus. Each preliminary prospectus filed as
part of the registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the
Rules and Regulations or pursuant to the Rules and Regulations will be deemed to
comply therewith.
(c) The Company and its Material Subsidiaries (as defined below) have
good and sufficient title to all material real property and good and sufficient
title to all material personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially interfere with the use made and proposed
to be made of such property by the Company and its Material Subsidiaries; and
any material real property and buildings held under lease by the Company and its
Material Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the
Company or its Material Subsidiaries, as the case may be. As used in this
Agreement, the term "Material Subsidiary" means a significant subsidiary under
Rule 1-02(w) of Regulation S-X of the Commission).
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Minnesota, with power and
authority (corporate and other) to own its properties and conduct its business
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as described in the Prospectus, and there is no jurisdiction wherein the
character of the properties owned or held under lease by the Company or the
nature of the business transacted by the Company would expose the Company to any
material liability or disability by reason of the failure to qualify the Company
as a foreign corporation in any such jurisdiction; and each Material Subsidiary
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, and there is no jurisdiction wherein the character of the
properties owned or held under lease by any Material Subsidiary or the nature of
the business transacted by such Material Subsidiary would expose such Material
Subsidiary to any material liability or disability by reason of the failure to
qualify such Material Subsidiary as a foreign corporation in any such
jurisdiction. The Trust has been duly formed and is validly existing as a
business trust under the laws of Delaware, with power and authority to own its
properties and conduct its affairs as described in the Prospectus. The Company
and each Material Subsidiary hold all material licenses, certificates and
permits from governmental authorities necessary for the conduct of their
respective businesses.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, there has not been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, and since such dates there
has not been any transaction entered into by the Company or its Material
Subsidiaries, other than transactions in the ordinary course of business and
transactions set forth in or contemplated by the Registration Statement and the
Prospectus, as they may be amended or supplemented, which is material to the
Company and its subsidiaries, taken as a whole. The Company and its Material
Subsidiaries have no contingent obligation which is not disclosed in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, which is material to the Company and its subsidiaries, taken as a
whole.
(f) Any Incorporated Documents filed and incorporated by reference
prior to the Closing Date will, when they are filed with the Commission, conform
in all material respects with the requirements of the Exchange Act and the
Exchange Act Rules and Regulations.
(g) The Company has full corporate power and authority to enter into
this Agreement and the Trust has full power and authority to enter into the
Agreement. This Agreement has been duly authorized, executed and delivered by
each of the Company and the Trust.
(h) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Guarantee, and the issue and sale of the
Preferred Trust Securities by the Trust and the compliance by the Company with
all of the provisions of this Agreement, the Indenture, the Guarantee and the
Debentures and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in the creation or imposition of any
lien, charge or encumbrance upon any assets of the Company or its Material
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the articles of
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incorporation or bylaws of the Company or any of its Material Subsidiaries, any
material contract or other agreement to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries or any of its or their properties are bound or affected, or violate
or conflict with any material judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its Material Subsidiaries which
creation, imposition, breach, violation, default, right of termination,
acceleration, violation or conflict is material to the Company and its
subsidiaries, taken as a whole.
(i) The statements set forth in the Prospectus under the captions
["Description of Preferred Trust Securities and Common Trust Securities" and
"Certain Terms of the Preferred Trust Securities"] constitute a summary of the
securities, documents and instruments therein described, are accurate and fairly
present the information contained therein in all material respects.
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its respective articles of incorporation or bylaws or is in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party, which
default is material to the Company and its subsidiaries taken as a whole.
(k) Each of the Indenture and the Guarantee has been duly qualified
under the Trust Indenture Act and has been duly authorized by the Company and
when executed and delivered by the Company and the Indenture Trustee or the
Trustees, respectively, will be enforceable in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
other laws affecting creditors' rights generally and by general principles of
equity (whether such enforceability is considered in a proceeding in equity or
in law) and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(l) The Debentures have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Trust as described in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally and by general principles of equity
(whether such enforceability is considered in a proceeding in equity or in law)
and (ii) rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(m) The Trust Agreement has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and when executed and
delivered by the Company and the Trustees will be enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally and by general
principles of equity (whether such enforceability is considered in a proceeding
in equity or in law) and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
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(n) The Preferred Trust Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Trust
Agreement and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be entitled to the benefits of the Trust
Agreement and will be valid and binding obligations of the Trust, enforceable in
accordance with their terms except as (i) the enforceability thereof may be
limited bankruptcy, insolvency, or other laws affecting creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration,
if any, and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(o) The description of the Preferred Trust Securities in the
Registration Statement and the Prospectus, as they may be amended or
supplemented, is, and at the Closing Date will be, complete and accurate in all
respects.
(p) The Company has filed a Petition for Certification of Capital
Structure with the Minnesota Public Utilities Commission ("Minnesota
Commission") pursuant to the Minnesota Public Utilities Act with respect to the
issuance and sale by the Company of the Debentures and the Guarantee. The
Minnesota Commission has entered an authorizing order approving the capital
structure including the issuance and sale of the Debentures and the Guarantee
and such authorizing order is still in full force and effect. Apart from such
authorizing order of the Minnesota Commission, no consent, approval,
authorization or order of, or any filing or declaration with, any court or
governmental agency or body is required for the consummation by the Company of
the transactions on its part herein contemplated, except such as have been
obtained under the Securities Act or the Rules and Regulations.
(q) Neither the Company nor the Trust is, or after giving effect to
the offering and sale of the Securities will be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
(r) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its Material Subsidiaries is a party or to which any property
of the Company or any of its Material Subsidiaries is subject, which, if
determined adversely to the Company or any of its Material Subsidiaries would in
the Company's reasonable judgment individually or in the aggregate have a
material adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
5. Agreements of the Company. (a) The Company will not file any
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amendment or supplement to the Registration Statement or the Prospectus unless a
copy has first been submitted to the Underwriters a reasonable time before its
filing and the Underwriters have not reasonably objected to it in writing within
a reasonable time after receiving the copy.
(b) The Company will promptly advise the Underwriters (i) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the Preferred
Trust Securities for sale in any jurisdiction or the issuance of any order by
the Commission suspending the effectiveness of the Registration Statement and
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(ii) of receipt by the Company or any representative or attorney of the Offerors
of any other communication from the Commission relating to the Company, the
Registration Statement, any preliminary prospectus or the Prospectus or to the
transactions contemplated by this Agreement. The Company will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement and, if any such order is issued, to
obtain its lifting as soon as possible.
(c) The Company will furnish to [name of lead Underwriter] without
charge one signed copy, and to each of the other Underwriters one copy of the
signed copy certified by an officer of the Company, of the Registration
Statement and any amendment thereto (including all exhibits filed with any such
document) and as many conformed copies of the Registration Statement as the
Underwriters may reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by the Underwriters or a dealer, the Company will promptly deliver,
without charge, to the Underwriters and to dealers, at such office or offices as
the Underwriters may designate, as many copies of the Prospectus as the
Underwriters may reasonably request, and, during such period after the Effective
Date if any event occurs as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements in it, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if during such period it is necessary to
amend or supplement the Prospectus to comply with the Securities Act or the
Rules and Regulations, the Company will promptly prepare, submit to the
Underwriters, file, subject to Section 5(a) hereof, with the Commission and
deliver, without charge, to the Underwriters and to dealers (whose names and
addresses the Underwriters will furnish to the Company) to whom Preferred Trust
Securities may have been sold by the Underwriters, and to other dealers on
request, amendments or supplements to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading in any material respect and will comply with the Securities Act and
the Rules and Regulations. Delivery by the Underwriters of any such amendments
or supplements to the Prospectus will not constitute a waiver of any of the
conditions in Section 6 hereof.
(e) The Company will make generally available to the Company's
security holders and the security holders of the Trust, as soon as practicable
but in no event later than the last day of the 15th full calendar month
following the calendar quarter in which the Effective Date falls, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Rules and Regulations.
(f) The Company will take such actions as the Underwriters reasonably
designate in order to qualify the Preferred Trust Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Underwriters reasonably designate; provided that the Company shall not be
required to register or qualify as a foreign corporation or dealer in
securities, to file any consents to service of process under the laws of any
jurisdiction or to meet any other requirement deemed by the Company to be unduly
burdensome.
(g) The Company will pay, or reimburse if paid by the Underwriters,
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
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costs and expenses relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments and supplements to the Registration Statement and the
Prospectus, (ii) the authorization and issuance of the Preferred Trust
Securities and the preparation and delivery of the forms of the Preferred Trust
Securities sold by the Trust to the Underwriters, (iii) the registration or
qualification of the Preferred Trust Securities for offer and sale under the
securities or "blue sky" laws of the jurisdictions referred to in Section 5(f)
and the determination of the legality of the Preferred Trust Securities for
investment, including the reasonable fees and disbursements of counsel for the
Underwriters (not to exceed $ ) in that connection, and the preparation and
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printing of preliminary and supplemental "blue sky" memoranda and legal
investment memoranda, (iv) the furnishing (including costs of shipping and
mailing) to the Underwriters and to dealers of copies of the Registration
Statement, each preliminary prospectus, the Prospectus, and all amendments or
supplements to the Prospectus, and of the other documents required by this
Section to be so furnished, (v) any fees charged by securities rating services
for rating the Securities, (vi) all transfer taxes, if any, with respect to the
sale and delivery of the Preferred Trust Securities by the Trust to the
Underwriters, (vii) the fees and expenses of the Trustees, and Paying Agent or
Registrar under Trust Agreement and the reasonable fees and disbursements of
counsel for any Trustee in connection with the Preferred Trust Securities,
(viii) the filing fees and expenses, if any incurred with respect to any filing
with the National Association of Securities Dealers, Inc., made in connection
with the offering of the Preferred Trust Securities, and (ix) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Company will not offer, sell, or otherwise
dispose of any debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Preferred Trust
Securities (other than (i) the Preferred Trust Securities, (ii) commercial paper
issued in the ordinary course of business, and (iii) the Company's common stock,
preferred stock, secured indebtedness and unsecured indebtedness which is not
subordinated), without the prior written consent of [name of lead Underwriter].
6. Conditions of the Underwriters' Obligations. The obligations of the
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Underwriters to purchase the Preferred Trust Securities are subject to the
accuracy, on the date of this Agreement and on the Closing Date, of the
representations of the Offerors in this Agreement, to the accuracy and
completeness of all statements made by the Offerors or any of their officers in
any certificate delivered to the Underwriters or their counsel pursuant to this
Agreement, to performance by the Offerors of their obligations under this
Agreement and to each of the following additional conditions:
(a) All filings required by Rule 424 of the Rules and Regulations must
have been made.
(b) No stop order suspending the effectiveness of the Registration
Statement may be in effect and no proceedings for such purpose may be pending
before or threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) must have been complied with.
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(c) Since the respective dates as of which such information is given
in the Registration Statement and the Prospectus, as they may be amended or
supplemented, (i) there must not have been any material change in the capital
stock or long-term debt of the Company and its subsidiaries, taken as a whole,
(ii) there must not have been any material adverse change, or any development
involving, so far as the Company can now reasonably foresee, a prospective
material adverse change in the business, properties, financial condition, or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not in the ordinary course of business and, since such dates there
shall not have been any material transaction entered into by the Company other
than transactions set forth in or contemplated by the Prospectus, and (iii)
there must not have occurred any event that makes untrue or incorrect in any
material respect any statement or information contained in the Prospectus or
that is not reflected in the Prospectus but should be reflected in it in order
to make the statements or information in it not misleading in any material
respect; and in the judgment of the Underwriters, any such development referred
to in clause (i), (ii) or (iii) makes it impracticable to consummate the sale
and delivery of the Securities by the Underwriters at the initial public
offering price.
(d) The Underwriters must receive on the Closing Date a certificate,
dated such date, of the chief executive officer, the chief operating officer or
the chief financial officer of the Company certifying that (i) the signer has
carefully examined the Registration Statement and the Prospectus (including any
Incorporated Documents) and this Agreement, (ii) the representations of the
Company in this Agreement are accurate on and as of the date of the certificate,
(iii) since the most recent dates as of which information is given in the
Registration Statement or the Prospectus, as amended or supplemented, there has
not been any material adverse change, or any development involving, so far as
the Company can now reasonably foresee, a prospective material adverse change in
the business, properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not in the ordinary
course of business, and since such dates there has not been any transaction
entered into by the Company or its Material Subsidiaries, other than
transactions in the ordinary course of business and transactions set forth in or
contemplated in the Prospectus, as amended or supplemented, which is material to
the Company and its subsidiaries, taken as a whole, (iv) to the knowledge of
such officer, no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of the Preferred Trust Securities has been
issued and no proceedings for such purpose are pending before or threatened by
the Commission, (v) there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that upon such filing
would be deemed to be an Incorporated Document that has not been so filed, and
(vi) the Company has performed all agreements that this Agreement requires it to
perform by the Closing Date.
(e) Since the date of this Agreement, there must not have been any
lowering of the ratings of the Company's Preferred Trust Securities or any other
securities of the Company (or a special purpose subsidiary of the Company) which
are the same class as the Preferred Trust Securities by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") or Standard & Poor's Rating Services ("S&P") or any
notice from Moody's or S&P 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 ratings accorded the Company's Securities.
(f) The Underwriters must receive on the Closing Date opinions dated
the Closing Date substantially in the form of Annexes A, B and C to this
Agreement from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel to the Company
10
and the Trust, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to the Company, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq., general counsel of the Company, respectively.
(g) The Underwriters must receive on the Closing Date from ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, LLP, their counsel, an opinion dated the Closing Date
with respect to the Company, the Trust, the Preferred Trust Securities, the
Registration Statement, the Prospectus, the Debentures, the Trust Agreement, the
Indenture, the Guarantee, this Agreement and the form and sufficiency of all
proceedings taken in connection with the sale and delivery of the Preferred
Trust Securities. Such opinion and proceedings shall be satisfactory in all
respects to the Underwriters. The Company must have furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to render such opinion.
(h) The Underwriters must receive on the Closing Date a signed letter,
dated the Closing Date, from PricewaterhouseCoopers LLP to the effect that (i)
they are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and regulations
thereunder adopted by the Commission, (ii) in their opinion, the consolidated
financial statements and financial statement schedule audited by them and
incorporated by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and
the Exchange Act and the published rules and regulations thereunder adopted by
the Commission with respect to registration statements on Form S-3, (iii) on the
basis of a reading of the unaudited consolidated financial statements of the
Company incorporated by reference in the Prospectus, if any, the latest
available unaudited consolidated financial data of the Company and its
subsidiaries since the close of the Company's most recent audited fiscal year,
the minutes and consents of the Board of Directors since the end of the most
recent audited fiscal year, and inquiries of officials of the Company who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and,
accordingly, that PricewaterhouseCoopers LLP makes no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing has come
to their attention which caused them to believe that (1) the unaudited
consolidated financial statements of the Company incorporated by reference in
the Prospectus, if any, (a) do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the published rules and regulations thereunder or (b) are not
stated on a basis substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in the Prospectus,
(2) at the date of the latest available unaudited financial data read by them
and at a specified date not more than five days prior to the Closing Date there
was any change in the capital stock, increase in long-term debt or decreases in
consolidated net current assets (working capital) or stockholders' equity of the
Company and its subsidiaries, in each case as compared with amounts shown in the
most recent consolidated financial information incorporated by reference in the
Prospectus, except in all instances for changes, increases or decreases which
the Prospectus, as amended or supplemented, discloses have occurred or may
occur, or which are disclosed in such letter, or (3) for the period from the
date of the most recent audited consolidated financial statements to the date of
the latest available unaudited financial data read by them and for the period
11
from the date of the latest available unaudited financial data read by them to a
specified date not more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated operating revenues or in the total or per-share amounts of net
income, except in all instances for changes, increases or decreases which the
Prospectus, as amended or supplemented, discloses have occurred or may occur, or
which are disclosed in such letter, and they have carried out certain procedures
and made certain findings, as specified in such letter, with respect to certain
amounts included or incorporated by reference in the Registration Statement and
the Prospectus and such other items as the Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement will comply with this Agreement only if they are in
form and scope satisfactory to counsel for the Underwriters.
7. Indemnification. (a) The Offerors shall jointly and severally
---------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter, and each person, if any, who controls any
Underwriter, within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all losses, claims, damages and
liabilities, joint or several (including, without limitation, as and when
incurred, any investigative, legal or other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities 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 arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus (including any
Incorporated Document), or the omission or alleged omission to state in it a
material fact required to be stated in it or necessary to make the statements in
it not misleading; provided, however, that the Offerors will not be liable to
the extent that such loss, claim, damage, or liability arises from the sale of
the Preferred Trust Securities in the public offering to any person by the
Underwriters and (i) is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information furnished in writing to the Company or the Trust by the Underwriters
expressly for use in the Registration Statement or the Prospectus, as set forth
in the penultimate sentence of Section 4(b) hereof, or (ii) results solely from
one or more untrue statements of material facts contained in, or the omission of
one or more material facts from, any preliminary prospectus or preliminary
prospectus supplement or the Prospectus, which untrue statement or omission was
corrected in the Prospectus (as then amended or supplemented) if the
Underwriters sold the Preferred Trust Securities to the person alleging such
loss, claim, liability, expense or damage without sending or giving, at or prior
to the written confirmation of such sale, a copy of the corrected Prospectus (as
then amended or supplemented), if the Company had previously furnished copies
thereof to the Underwriters within a reasonable amount of time prior to such
sale or confirmation, and the Underwriters failed to send or give the corrected
Prospectus (as then amended or supplemented), if required by law to have so sent
or given it and if sent or given would have been a defense with respect to such
untrue statement or omission against the person asserting such loss, claim,
liability, expense or damage. This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
12
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Offerors, its officers and directors, and each person, if any,
who controls any thereof within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Offerors to the Underwriters, but only insofar as losses, claims,
damages or liabilities arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in or in reliance on and
in conformity with information furnished in writing to the Company or the Trust
by the Underwriters expressly for use in the Registration Statement or the
Prospectus, as set forth in the penultimate sentence of Section 4(b). This
indemnity agreement will be in addition to any liability that the Underwriters
might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify in writing each
such indemnifying party of the commencement of such action, enclosing a copy of
all papers served, but the omission so to notify such indemnifying party will
not relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 7. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in, and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and, after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its counsel in any such action, but the fees and
expenses of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party), or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the fees and expenses of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate counsel admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. Such counsel shall be designated by [Name of Lead Underwriter] in the
case of parties indemnified pursuant to Section 7(a) hereof and by the Company
in the case of parties indemnified pursuant to Section 7(b) hereof. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
13
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
8. Contribution. In order to provide for just and equitable
------------
contribution in the circumstances in which the indemnification provided for
under the foregoing provisions of Section 7 is applicable in accordance with its
terms but for any reason is held to be unavailable from the Offerors or the
Underwriters, the Offerors and the Underwriters shall contribute to the amount
paid or payable as a result of losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted) to which the Offerors and the Underwriters may
be subject in such proportion as shall be appropriate to reflect (i) the
relative benefits received by the Offerors, on the one hand, and the
Underwriters, on the other, (ii) the relative fault of the Offerors, on the one
hand, and the Underwriters, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as (iii) any other relevant equitable
considerations with respect to such offering. Such relative benefits shall be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Trust bear to the total underwriting
discounts and commissions received by the Underwriters as set forth in the
Prospectus. Such relative fault shall be determined by reference, among other
things, to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section 8
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 8 shall be deemed to include, for
purpose of this Section 8, 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 Section 8, the
Underwriters shall not be required to contribute any amount in excess of the
underwriting discounts and commissions received by them, except that insofar as
losses, claims, damages and liabilities arise from the sale of the Securities in
the public offering to any person by the Underwriters and are based on any
untrue statement or omission or alleged untrue statement or omission made in or
in reliance on and in conformity with information furnished in writing to the
Company or the Trust by the Underwriters expressly for use in the Registration
Statement, any preliminary prospectus or preliminary prospectus supplement or
the Prospectus, as set forth in the penultimate sentence of Section 4(b), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Preferred Trust Securities
underwritten by them and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
14
or alleged omission. No person found 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. For purposes of this Section 8, any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Offerors who signed the
Registration Statement will have the same rights to contribution as the
Offerors, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 8, will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 8. No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
9. Termination. The obligations of the several Underwriters under this
-----------
Agreement may be terminated by [Name of Lead Underwriter] [with the consent of
the Underwriters which have agreed to purchase in the aggregate 50% or more of
aggregate principal amount of the Securities] at any time on or before the
Closing Date by notice to the Company, without liability on the part of the
Underwriters to the Offerors, if subsequent to the date of this Agreement and
prior to the delivery and payment for the Preferred Trust Securities (a) trading
in the equity securities of the Company is suspended by the Commission or by the
New York Stock Exchange ("NYSE"), (b) trading in securities generally on the
NYSE shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by the NYSE or by order
of the Commission or any other governmental authority, (c) a general banking
moratorium has been established by Federal or New York authorities, (d) any
outbreak or material escalation of hostilities or other calamity or crisis shall
have occurred, the effect of any of which is such as to make it, in the
reasonable judgment of the Underwriters impracticable or inadvisable to proceed
with the public offering of the Securities on the terms and in the manner
contemplated by the Prospectus, or (e) if any of the conditions specified in
Section 6 have not been fulfilled when and as required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
except as otherwise provided, the Offerors will not be under any liability to
the Underwriters except that if this Agreement is terminated by the Underwriters
because of any failure or refusal on the part of the Offerors to comply with the
terms of this Agreement or because any of the conditions in Section 6 are not
satisfied, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the proposed purchase and sale of
the Preferred Trust Securities.
The Offerors shall not in any event be liable to the Underwriters for
damages on account of loss of anticipated profits.
10. Substitution of Underwriters. If one or more of the Underwriters
----------------------------
shall, for any reason permitted hereunder, cancel its obligation to purchase
hereunder and to take up and pay for the Preferred Trust Securities to be
purchased by such one or more Underwriters, the Company shall immediately notify
15
the remaining Underwriters, and the remaining Underwriters shall have the right,
within 24 hours of receipt of such notice, either to take up and pay for (in
such proportion as may be agreed upon among them) or to substitute another
underwriter or underwriters, satisfactory to the Company, to take up and pay for
the principal amount of Preferred Trust Securities that such one or more
Underwriters did not purchase. If one or more Underwriters shall, for any reason
other than a reason permitted hereunder, fail to take up and pay for the
Preferred Trust Securities to be purchased by such one or more Underwriters, the
Company shall immediately notify the remaining Underwriters, and the remaining
Underwriters shall be obligated to take up and pay for (in addition to the
respective principal amount of Preferred Trust Securities set forth opposite
their respective names in Schedule II) the principal amount of Preferred Trust
Securities that such defaulting Underwriter or Underwriters failed to take up
and pay for, up to a number thereof equal to, in the case of each such remaining
Underwriter, percent ( %) of the principal amount of Preferred Trust
------ ----
Securities set forth opposite the name of such remaining Underwriter in Schedule
II, and such remaining Underwriters shall have the right, within 24 hours of
receipt of such notice, either to take up and pay for (in such proportion as may
be agreed upon among them), or to substitute another underwriter or
underwriters, satisfactory to the Company, to take up and pay for, the remaining
principal amount of the Preferred Trust Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any unpurchased
Preferred Trust Securities still remain, then the Company or the Underwriters
shall be entitled to an additional period of 24 hours within which to procure
another party or parties, who are members of the NASD (or if not members of the
NASD, who are not eligible for membership in the NASD and who agree (i) to make
no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein and (ii) in making sales
to comply with the NASD's Conduct Rules) and satisfactory to the Company, to
purchase or agree to purchase such unpurchased Preferred Trust Securities on the
terms herein set forth. In any such case, either the remaining Underwriters or
the Company shall have the right to postpone the Closing Date for a period not
to exceed seven full business days from the date agreed upon in accordance with
this Section 10, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Underwriters and the Company shall fail to procure a
satisfactory party or parties as above provided to purchase or agree to purchase
such unpurchased Preferred Trust Securities, then the Company may either (i)
require the remaining Underwriters to purchase the principal amount of Preferred
Trust Securities that they are obligated to purchase hereunder (but no more than
such principal amount of Preferred Trust Securities) or (ii) terminate this
Agreement by giving prompt notice to the Underwriters. In the event that neither
the remaining Underwriters nor the Company has arranged for the purchase of such
unpurchased Preferred Trust Securities by another party or parties as above
provided and the Company has not elected to require the remaining Underwriters
to purchase the principal amount of Preferred Trust Securities that they are
obligated to purchase hereunder, then this Agreement shall terminate without any
liability on the part of any such Underwriter or the Company for the purchase or
sale of any Preferred Trust Securities under this Agreement. Any action taken
pursuant to this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriters under this Agreement.
11. Effectiveness. This Agreement shall become effective upon the
-------------
execution and delivery hereof by the parties hereto.
16
12. Miscellaneous. The reimbursement, indemnification and contribution
-------------
agreements in Sections 5, 7, 8 and 9 and the representations and agreements of
the Company, the Trust and the Underwriters in this Agreement will remain in
full force and effect regardless of any termination of this Agreement, any
investigation made by or on behalf of the Underwriters, the Company, the Trust
or any controlling person and delivery and acceptance of and payment for the
Preferred Trust Securities.
This Agreement is for the benefit of the Underwriters, the Offerors,
and their successors and assigns, and, to the extent expressed in this
Agreement, for the benefit of persons controlling the Underwriters or the
Offerors, directors and officers of the Offerors and directors, officers,
employees and agents of the Underwriters, and their respective successors and
assigns, and no other persons, partnership, association or corporation will
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" does not include any purchaser of Preferred Trust
Securities from the Underwriters merely because of such purchase.
All notices and communications under this Agreement will be in writing
and mailed or delivered, by messenger, facsimile transmission or otherwise, to
the Underwriters at[ ]
---------------------------------------------------------
Attention: [ ] and to the Offerors, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer. Any such
notice or communication shall take effect upon receipt thereof.
This Agreement may be signed in multiple counterparts that taken as a
whole constitute one agreement.
If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, paragraph or
provision hereof.
17
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
ALLETE
(legally incorporated as MINNESOTA POWER, INC.)
By:
-------------------------------------------
Title:
[Name of Trust]
By:
-------------------------------------------
(Authorized Representative)
Confirmed:
[Name(s) of Underwriter(s)]
By:
-------------------------------
Title:
18
SCHEDULE I
Securities:
Designation:
Liquidation Preference Amount:
Date of Maturity:
Distribution Rate:
Purchase Price:
Underwriting Commissions (payable by the Company):
Public Offering Price:
19
SCHEDULE II
-----------
[Name of Trust]
Preferred Trust Securities
Number of Preferred
Name Trust Securities
---- ----------------
Total ==========
$
20
ANNEX A
[LETTERHEAD OF ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.]
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Re: [Name of Trust]
---------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for ALLETE (legally incorporated
as Minnesota Power, Inc., a Minnesota corporation (the "Company"), and [Name of
Trust], a Delaware business trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated as of , 2001
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on , 2001;
(b) The Trust Agreement of the Trust, dated as of , 2001,
among the Company and the trustees of the Trust named therein;
(c) The Prospectus, dated , 2001, and the Prospectus
Supplement, dated , (jointly, the "Prospectus"), relating to the
Preferred Trust Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Trust
Security" and collectively, the "Preferred Trust Securities");
(d) The Amended and Restated Trust Agreement of the Trust, dated as of
, (including Exhibits A, B and D thereto) (the "Trust
Agreement"), among the Company, the trustees of the Trust named therein (the
"Trustees") and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust;
(e) The Underwriting Agreement, dated , (the "Underwriting
Agreement"), among the Company, the Trust and the Underwriters named in Schedule
II thereto; and
(f) A Certificate of Good Standing for the Trust, dated ,
, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (f) above, which we believe are
all the documents necessary or appropriate for us to have considered for the
purposes of rendering the opinions stated herein. In particular, we have not
reviewed any document (other than the documents listed in paragraphs (a) through
(f) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation, due formation or due
organization, as the case may be, and the valid existence in good standing of
each party to the documents examined by us under the laws of the jurisdiction
governing its creation, formation or organization, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) except to
the extent set forth in paragraph 2 below, that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) except to the extent
provided in paragraph 4 below, that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
the receipt by each Person to whom a Preferred Trust Security is to be issued by
the Trust (the "Preferred Trust Security Holders") of a Preferred Trust
Securities Certificate for the Preferred Trust Security and the payment for the
Preferred Trust Security acquired by it, in accordance with the Trust Agreement,
and as described in the Prospectus, (vii) that the Preferred Trust Securities
are issued and sold to the Preferred Trust Security Holders in accordance with
the Trust Agreement, and as described in the Prospectus, (viii) the receipt by
the Person (the "Common Trust Security Holder") to whom a Common Trust Security
A-2
of the Trust representing common undivided beneficial interests in the assets of
the Trust (each, a "Common Trust Security" and collectively, the "Common Trust
Securities") (the Preferred Trust Securities and the Common Trust Securities
being hereinafter collectively referred to as "Trust Securities") is to be
issued by the Trust of a Common Trust Securities Certificate for the Common
Trust Security and the payment for the Common Trust Security acquired by it, in
accordance with the Trust Agreement, and as described in the Prospectus, (ix)
that the Common Trust Securities are issued and sold to the Common Trust
Security Holder in accordance with the Trust Agreement, and as described in the
Prospectus, (x) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
Delaware trustee as required by the Delaware Business Trust Act and filing
documents with the Secretary of State) or employees in the State of Delaware,
and (xi) that the Trust is treated as a grantor trust for federal income tax
purposes. We have not participated in the preparation of the Prospectus and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and
perform its obligations under, the Underwriting Agreement, and (iii) issue, and
perform its obligations under, the Trust Securities.
3. The Trust Agreement is a legal, valid and binding agreement of the
Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the Trust Agreement, the
execution and delivery of the Underwriting Agreement by the Trust, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Trust.
A-3
5. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or Delaware agency is required to be obtained
by the Trust solely in connection with the issuance and sale of the Preferred
Trust Securities.
6. The Preferred Trust Securities have been duly authorized by the
Trust Agreement and, when issued and sold in accordance with the Trust
Agreement, the Preferred Trust Securities will be, subject to the qualifications
set forth in paragraph 7 below, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust.
7. The Preferred Trust Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Trust
Security Holders may be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Trust
Securities Certificates and the issuance of replacement Preferred Trust
Securities Certificates, and (ii) provide security or indemnity in connection
with requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
8. Under the Delaware Business Trust Act and the Trust Agreement, the
issuance of the Preferred Trust Securities is not subject to preemptive rights.
9. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated thereby and the
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Trust Agreement, or (ii) any
applicable Delaware law or Delaware administrative regulation.
10. The Preferred Trust Security Holders (other than those Preferred
Trust Security Holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject, as to enforcement,
to the effect upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
We consent to your relying as to matters of Delaware law upon this opinion
in connection with the Underwriting Agreement. We also consent to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Singer & ▇▇▇▇▇▇▇▇▇, LLP's, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇'▇ and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP's
relying as to matters of Delaware law upon this opinion in connection with
opinions to be rendered by them on the date hereof pursuant to the Underwriting
Agreement. Further, we consent to the reliance by The Bank of New York (in its
capacity as Debenture Trustee under the Subordinated Indenture, as trustee under
A-4
the Guarantee, and as Property Trustee under the Trust Agreement) and The Bank
of New York (Delaware) (in its capacity as Delaware Trustee under the Trust
Agreement) as to matters of Delaware law upon this opinion in connection with
the matters set forth herein. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or relied upon by, any
other Person for any purpose.
Very truly yours,
A-5
ANNEX B
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP]
New York, New York
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Ladies and Gentlemen:
We have acted as counsel to ALLETE (legally incorporated as Minnesota
Power, Inc.), a Minnesota corporation (the "Company"), in connection with the
transactions contemplated by the Underwriting Agreement dated , 2001
among the Company, [Name of Trust] (the "Trust") and the Underwriters named
therein (the "Underwriting Agreement"), including, among others, (i) the
issuance by the Trust, a statutory business trust organized under the Delaware
Business Trust Act (the "Delaware Act") of Preferred Trust Securities (the
"Preferred Trust Securities") having an aggregate liquidation amount of
$ ,000,000, (ii) the issuance by the Company of $ principal amount of
its Junior Subordinated Debentures, Series (the "Debentures") and (iii) the
guarantee by the Company of the Preferred Trust Securities pursuant to a
Guarantee Agreement, dated the date hereof, between the Company and The Bank of
New York, as trustee (the "Guarantee").
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement.
In so acting we have participated in or reviewed the corporate proceedings
in connection with the authorization, execution and delivery of the Underwriting
Agreement, the Trust Agreement, the Indenture, the Debentures and the Guarantee.
In addition, we have reviewed the petition filed by the Company with the
Minnesota Public Utilities Commission seeking authorization for the issuance of
the Preferred Trust Securities, and the order issued by said Commission in
response to said petition. We have also examined such other documents and
satisfied ourselves as to such other matters as we have deemed necessary as a
basis for the conclusions of law contained in the opinions expressed below. We
have relied as to various questions of fact upon the representations and
warranties of the Company contained in the Underwriting Agreement and, where we
deemed appropriate, on certificates of public officials. We have relied upon a
certificate of the Trustee under the Indenture as to the due authentication of
the Debentures. In our examination we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
photostatic or certified copies.
Based on the foregoing and subject to the qualifications and limitations
set forth herein, we are of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
2. The Indenture, the Trust Agreement and the Guarantee have been duly
qualified under the Trust Indenture Act.
3. The Debentures and the Indenture have been duly authorized, executed and
delivered by the Company; the Debentures, when issued against payment therefor
as contemplated by the Trust Agreement, will be entitled to the benefits of the
Indenture; and the Debentures (when so issued) and the Indenture are legal,
valid and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or other laws affecting enforcement of
other creditors' rights generally and by general principles of equity (whether
such enforceability is considered in a proceeding in equity or in law) and (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
4. The Guarantee has been duly authorized, executed and delivered by the
Company, and is enforceable against the Company in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of other creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
5. The statements made in the Prospectus under the captions ["Description
of Preferred Trust Securities and Common Trust Securities," "Description of the
Junior Subordinated Debentures," "Description of the Guarantee", "Certain Terms
of the Preferred Trust Securities" and "Certain Terms of the Junior Subordinated
Debentures"] insofar as they purport to constitute summaries of the terms of the
documents referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
6. Neither the Company nor the Trust is an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
B-2
7. The Registration Statement as of the Effective Date, and the Prospectus
at the time it was filed with the Commission pursuant to Rule 424 (except for
the financial statements and schedules and other financial and statistical data
contained or incorporated by reference therein and except for that part of the
Registration Statement that constitutes the Statements of Eligibility on Form
T-1, as to which we do not express any opinion) complied as to form in all
material respects with the Securities Act and the applicable instructions, rules
and regulations of the Commission thereunder; the Incorporated Documents (except
as to the financial statements and schedules and other financial and statistical
data contained therein, as to which we do not express any opinion), at the time
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the Securities Act and,
to our knowledge, no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Securities Act.
8. An authorizing order has been issued by the Minnesota Public Utilities
Commission certifying the Company's capital structure and authorizing the
issuance and sale of the Debentures and the Guarantee, and to the best of our
knowledge, said order is still in full force and effect; and no other approval,
authorization, consent or order of any public board or body (other than in
connection or in compliance with the provisions of the blue-sky laws of any
jurisdiction, as to which we do not express any opinion) is legally required for
the authorization of the issue and sale by the Company of the Debentures and the
issuance by the Company of the Guarantee.
We herewith confirm as our opinion the statements under the caption
["Material United States Federal Income Tax Matters with Respect to the
Preferred Trust Securities"] in the Prospectus.
In the course of the preparation of the information relating to the Company
contained in the Prospectus (including the Incorporated Documents) we had
discussions with certain of its officers and representatives, with other counsel
for the Company, with PricewaterhouseCoopers LLP, the Company's independent
certified public accountants who audited certain of the financial statements
contained in the Incorporated Documents, and with certain of your officers and
employees and your counsel, but we made no independent verification of the
accuracy or completeness of the representations and statements made to us by the
Company or the information included by the Company in the Prospectus (including
the Incorporated Documents) and take no responsibility therefor except as set
forth in the immediately preceding paragraph and in paragraph 5 above. However,
our examination of the information relating to the Company contained in the
Registration Statement and the Prospectus and our discussions did not disclose
to us anything which gives us reason to believe that (except as to financial
statements and schedules and other financial and statistical data and except as
to that part of the Registration Statement that constitutes the Statements of
Eligibility on Form T-1, as to which we do not express any belief) (i) the
Registration Statement, as of the Effective Date, included 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 (ii) the
Prospectus at the time it was filed with the Commission pursuant to Rule 424,
included or on the date hereof includes an untrue statement of a material fact
or on such dates omitted or omits to state a material fact necessary in order to
B-3
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
We are members of the New York Bar and do not hold ourselves out as experts
in the laws of the State of Minnesota. As to all matters of Minnesota law, we
have, with your consent, relied upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.,
Vice President, General Counsel and Secretary for the Company; and as to all
matters of Delaware law, we have, with your consent, relied upon the opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Wilmington, Delaware, special counsel for the
Company and the Trust. We believe that you and we are justified in relying on
such opinions.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
B-4
ANNEX C
[LETTERHEAD OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ESQ., VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY OF ALLETE]
[Date]
[Insert Name(s)
and address(es)
of Underwriters]
Ladies and Gentlemen:
I am General Counsel to ALLETE (legally incorporated as Minnesota Power,
Inc.), a Minnesota corporation (the "Company") and have acted in that capacity
in connection with the transactions contemplated by the Underwriting Agreement
dated , 2001 among the Company, [Name of Trust] (the "Trust") and the
Underwriters named therein (the "Underwriting Agreement"), including, among
others, (i) the issuance by the Trust, a statutory business trust organized
under the Delaware Business Trust Act (the "Delaware Act"), of Preferred Trust
Securities (the "Preferred Trust Securities") having an aggregate liquidation
amount of $ ,000,000, (ii) the issuance by the Company of $
principal amount of its Junior Subordinated Debentures, Series (the
"Debentures"), (iii) the guarantee by the Company of the Preferred Trust
Securities pursuant to a Guarantee Agreement, dated the date hereof, between the
Company and The Bank of New York, as trustee (the "Guarantee") and (iv) the
petition filed by the Company with Minnesota Power Utilities Commission seeking
authorization to issue the Preferred Trust Securities.
Terms not otherwise defined herein are used with the meanings ascribed to
them in the Underwriting Agreement.
In so acting I have participated in or reviewed the corporate proceedings
in connection with the authorization, execution and delivery of the Underwriting
Agreement, the Trust Agreement, the Indenture, the Debentures and the Guarantee.
I have also examined such other documents and satisfied myself as to such other
matters as I have deemed necessary as a basis for the conclusions of law
contained in the opinions expressed below. I have relied as to various questions
of fact upon the representations and warranties of the Company contained in the
Underwriting Agreement and, where I deemed appropriate, on certificates of
public officials. I have relied upon a certificate of the trustee under the
Indenture as to the due authentication of the Debentures. In my examination I
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to me as originals and the conformity to original documents
of all documents submitted to me as photostatic or certified copies.
Upon the basis of my familiarity with these transactions and with the
affairs and properties of the Company generally, I am of the opinion that:
1. The Company is a corporation duly authorized, validly existing and
in good standing under the laws of the State of Minnesota, and has the corporate
power and authority: (a) to execute, deliver and perform its obligations under
the Underwriting Agreement and the Indenture, (b) to issue the Debentures and
the Guarantee and to incur the indebtedness to be evidenced thereby, and (c) to
own its property and assets and to conduct the business which it is now
conducting.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture, the Trust Agreement and the Guarantee have been duly
qualified under the Trust Indenture Act.
4. The Debentures and the Indenture have been duly authorized,
executed and delivered by the Company; the Debentures, when issued against
payment therefor as contemplated by the Trust Agreement, will be entitled to the
benefits of the Indenture; and the Debentures (when so issued) and the Indenture
are legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting enforcement of other creditors' rights generally and by general
principles of equity (whether such enforceability is considered in a proceeding
in equity or in law) and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
5. The Guarantee has been duly authorized, executed and delivered by
the Company, and is enforceable against the Company in accordance with its
terms, except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting enforcement of other creditors' rights
generally and by general principles of equity (whether such enforceability is
considered in a proceeding in equity or in law) and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
6. The statements made in the Prospectus under the captions
["Description of Preferred Trust Securities and Common Trust Securities,"
"Description of the Junior Subordinated Debentures," "Description of the
Guarantee", "Certain Terms of the Preferred Trust Securities" and "Certain Terms
of the Junior Subordinated Debentures"], insofar as they purport to constitute
C-2
summaries of the terms of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
7. Neither the Company nor the Trust is an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
8. The Company is a public utility corporation duly authorized by its
Articles of Incorporation to conduct the business which it is now conducting as
set forth in the Prospectus and the Company holds valid and subsisting
franchises, licenses and permits authorizing it to carry on the utility business
in which it is engaged.
9. Each Material Subsidiary (as defined in the Agreement) of the Company
is a validly organized and existing corporation under the laws of the State of
its incorporation and is duly qualified to do business, and is doing business,
in such State and in each other State in which the failure to qualify as a
foreign corporation would be material to the Company and its subsidiaries, taken
as a whole.
10. Other than as stated in the Registration Statement and the
Prospectus (or described in the Incorporated Documents), there are no material
pending legal proceedings to which the Company or any of its subsidiaries is a
party or of which property of the Company or any of its subsidiaries is the
subject which if determined adversely would have a material effect on the
Company and its subsidiaries taken as a whole, and to my knowledge, no such
proceedings are contemplated.
11. After due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contract or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
12. Neither the execution by the Company of the Indenture nor the
issue and sale by the Company of the Debentures nor the issue of the Guarantor
nor the consummation by the Company of the transactions contemplated by the
Agreement conflicts with, or results in a breach of, the charter or by-laws of
the Company or any Material Subsidiary or any agreement or instrument known to
me to which the Company or any Material Subsidiary is a party or by which the
Company or any Material Subsidiary is bound, any law or regulation or, so far as
is known to me, any order or regulation of any court, governmental
instrumentality or arbitrator, and which conflict or breach is material to the
Company and its subsidiaries, taken as a whole.
13. To the best of my knowledge, the Company is not currently in
breach of, or in default under, any material written agreement or instrument to
which it is a party or by which it or its property is bound or affected, and
which breach or default is material to the Company and its subsidiaries, taken
as a whole.
14. The Registration Statement, as of the Effective Date, and the
Prospectus at the time it was filed with the Commission pursuant to Rule 424
(except for the financial statements and schedules and other financial and
C-3
statistical data contained or incorporated by reference therein and except for
that part of the Registration Statement that constitutes the Statements of
Eligibility of Form T-1, as to which we do not express any opinion) complied as
to form in all material respects with the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder; the
Incorporated Documents (except as to the financial statements and schedules and
other financial and statistical data contained therein, as to which we do not
express any opinion), at the time they were filed with the Commission, complied
as to form in all material respects with the requirements of the Exchange Act
and the applicable instructions, rules and regulations of the Commission
thereunder; and the Registration Statement has become and is effective under the
Securities Act and, to our knowledge, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8 of the Securities Act.
15. An authorizing order has been issued by the Minnesota Public
Utilities Commission certifying the Company's capital structure and authorizing
the issuance and sale of the Debentures and the Guarantee and, to the best of
our knowledge, said order is still in full force and effect; and no other
approval, authorization, consent or order of any public board or body (other
than in connection or in compliance with the provisions of the blue-sky laws of
any jurisdiction, as to which we do not express any opinion) is legally required
for the authorization of the issue and sale by the Company of the Debentures and
the issuance by the Company of the Guarantee.
In passing upon the forms of the Registration Statement and the
Prospectus, I necessarily assume the correctness and completeness of the
statements made or included therein by the Company and take no responsibility
therefor, except insofar as such statements relate to me and as set forth in the
Prospectus under the headings "Experts" and "Legal Opinions" and in paragraphs 6
and 15 above. In the course of the preparation by the Company of the
Registration Statement and the Prospectus, I had conferences with certain of its
officers and representatives, with other counsel for the Company and with
PricewaterhouseCoopers LLP, the independent certified public accountants who
examined certain of the Company's financial statements incorporated by reference
in the Registration Statement. My examination of the Registration Statement and
the Prospectus, and my discussions in the above-mentioned conferences did not
disclose to me any information which gives me reason to believe that, at the
Effective Date, the Registration Statement 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 time it was filed electronically with the Commission pursuant
to Rule 424, and the Prospectus, as amended or supplemented at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
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. I do
not express any opinion or belief as to the financial statements or other
financial or statistical data contained in the Registration Statement or in the
Prospectus.
As to all matters of Minnesota law, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇, LLP are hereby authorized to rely upon this
opinion as though it was rendered to each of them.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
C-4