Exhibit 4.59
-------------------------------------------
COMMON SECURITIES GUARANTEE AGREEMENT
NSP Financing I
Dated as of August 18, 2000
-------------------------------------------
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS AND INTERPRETATION.........................................................................2
SECTION 1.1. Definitions and Interpretation.........................................................2
ARTICLE II. TRUST INDENTURE ACT...................................................................................5
SECTION 2.1. Trust Indenture Act; Application.......................................................5
SECTION 2.2. Lists of Holders of Securities.........................................................5
SECTION 2.3. Reports by the Common Guarantee Trustee................................................5
SECTION 2.4. Periodic Reports to Common Guarantee Trustee...........................................5
SECTION 2.5. Evidence of Compliance with Conditions Precedent.......................................6
SECTION 2.6. Events of Default; Waiver..............................................................6
SECTION 2.7. Event of Default; Notice...............................................................6
SECTION 2.8. Conflicting Interests..................................................................6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF COMMON
GUARANTEE TRUSTEE......................................................................7
SECTION 3.1. Powers and Duties of the Common Guarantee Trustee......................................7
SECTION 3.2. Certain Rights of Common Guarantee Trustee.............................................8
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.................................10
ARTICLE IV. COMMON GUARANTEE TRUSTEE.............................................................................10
SECTION 4.1. Common Guarantee Trustee; Eligibility.................................................10
SECTION 4.2. Appointment, Removal and Resignation of
Common Guarantee Trustees.............................................................11
ARTICLE V. GUARANTEE.............................................................................................12
SECTION 5.1. Guarantee.............................................................................12
SECTION 5.2. Waiver of Notice and Demand...........................................................12
SECTION 5.3. Obligations Not Affected..............................................................12
SECTION 5.4. Rights of Holders.....................................................................13
SECTION 5.5. Guarantee of Payment..................................................................14
SECTION 5.6. Subrogation...........................................................................14
SECTION 5.7. Independent Obligations...............................................................14
ARTICLE VI. LIMITATION OF TRANSACTIONS; SUBORDINATION............................................................14
SECTION 6.1. Limitation of Transactions............................................................14
SECTION 6.2. Ranking...............................................................................15
ARTICLE VII. TERMINATION.........................................................................................15
SECTION 7.1. Termination...........................................................................15
ARTICLE VIII. INDEMNIFICATION....................................................................................15
SECTION 8.1. Exculpation...........................................................................15
SECTION 8.2. Indemnification.......................................................................16
ARTICLE IX. MISCELLANEOUS........................................................................................16
SECTION 9.1. Successors and Assigns................................................................16
SECTION 9.2. Amendments............................................................................17
SECTION 9.3. Notices...............................................................................17
SECTION 9.4. Benefit...............................................................................18
SECTION 9.5. Governing Law.........................................................................18
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of August 18, 2000, is executed and delivered by Northern States Power Company,
a Minnesota corporation (formerly "Northern Power Corporation", the
"Guarantor"), and Wilmington Trust Company, as trustee (the "Common Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Common Securities (as defined herein) of NSP Financing I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of January 31, 1997, among the trustees of the Issuer
named therein, Xcel Energy Inc., a Minnesota corporation (formerly "Northern
States Power Company", hereinafter "Xcel", as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer issued on the date thereof 8,000,000 preferred securities, having an
aggregate liquidation amount of $200,000,000, designated the 7-7/8% Trust
Originated Preferred Securities (the "Preferred Securities") and 247,600 common
securities, having an aggregate liquidation amount of $6,190,000, designated the
7-7/8% Trust Originated Common Securities (the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common Securities
Xcel irrevocably and unconditionally agreed, to the extent set forth in that
certain Common Securities Guarantee dated as of January 31, 1997 by Xcel and the
Common Guarantee Trustee (the "Xcel Common Securities Guarantee"), to pay to the
Holders of the Common Securities the Guarantee Payments (as defined therein) and
to make certain other payments on the terms and conditions set forth therein;
and
WHEREAS, Xcel also executed and delivered a guarantee agreement (the
"Xcel Preferred Securities Guarantee") in substantially identical terms to the
Xcel Common Securities Guarantee for the benefit of the holders of the Preferred
Securities, except that if an Event of Default (as defined in the Indenture),
has occurred and is continuing, the rights of holders of the Common Securities
to receive Guarantee Payments under the Xcel Common Securities Guarantee are
subordinated to the rights of Holders of Xcel Preferred Securities to receive
Guarantee Payments under the Xcel Preferred Securities Guarantee;
WHEREAS, pursuant to the Indenture as supplemented by the First
Supplemental Indenture dated as of January 31, 1997, and the Second Supplemental
Indenture dated as of August 18, 2000, Guarantor has assumed the obligations of
Xcel under the Indenture and the Securities (as defined in the Indenture) as
joint and several co-obligor with Xcel under the Indenture as supplemented;
WHEREAS, Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities (as defined herein), except that if an Event of Default,
has occurred and is continuing, the rights of holders of the Common Securities
to receive Guarantee Payments under this Common Securities Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments under the Preferred Securities Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Common Securities Guarantee
for the benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
In this Common Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(c) all references to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are to this Common Securities Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Common Securities Guarantee to Articles and
Sections are to Articles and Sections of this Common Securities Guarantee,
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Common Securities Guarantee, unless otherwise defined in this
Common Securities Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
-2-
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by any
applicable law to close.
"Common Guarantee Trustee" means Wilmington Trust Company until a
Successor Common Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Common Securities Guarantee and
thereafter means each such Successor Common Guarantee Trustee.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Common Guarantee
Trustee at which the corporate trust business of the Common Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration.
"Covered Person" means any Holder or beneficial owner of Common
Securities.
"Debentures" means the series of junior subordinated debt securities of
the Guarantor designated the 7-7/8% Junior Subordinated Debentures due 2037 held
by the Institutional Trustee (as defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Common Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Common Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Common Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Common Securities as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Common Securities to the date of payment, to the extent the
Issuer shall have funds available therefor, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an event of default
under the Indenture has occurred and is continuing, the rights of holders of the
Common Securities to receive payments hereunder are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under the
Preferred Securities Guarantee Agreement.
-3-
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Common Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Common Guarantee Trustee, any Affiliate
of the Common Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Common Guarantee Trustee.
"Indenture" means the Indenture dated as of January 30, 1997, among the
Guarantor (the "Debenture Issuer") and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association (formerly, Norwest Bank Minnesota, National Association), as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Institutional Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Common Securities,
voting separately as a class, of more than 50% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Common Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Common Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
-4-
"Responsible Officer" means, with respect to the Common Guarantee
Trustee, any officer within the Corporate Trust Office of the Common Guarantee
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Common Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Successor Common Guarantee Trustee" means a successor Common Guarantee
Trustee possessing the qualifications to act as Common Guarantee Trustee under
Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application
(a) This Common Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Common Securities
Guarantee and shall, to the extent applicable, be governed by such provisions;
and
(b) if and to the extent that any provision of this Common Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2. Lists of Holders of Securities
(a) The Guarantor shall provide the Common Guarantee Trustee with a
list, in such form as the Common Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Common Securities ("List of
Holders") as of such date, (i) within 1 Business Day after January 1 and June 30
of each year, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Common Guarantee Trustee,
provided that the neither Guarantor nor Xcel shall be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Common Guarantee Trustee by the Guarantor or
Xcel. The Common Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Common Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Common Guarantee Trustee
-5-
Within 60 days after May 15 of each year, the Common Guarantee Trustee
shall provide to the Holders of the Common Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Common
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Common Guarantee Trustee
The Guarantor shall provide to the Common Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Common Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Common Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver
The Holders of a Majority in liquidation amount of Common Securities
may, by vote, on behalf of the Holders of all of the Common Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Common Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice
(a) The Common Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Common Securities, notices of all Events of
Default actually known to a Responsible Officer of the Common Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Common Guarantee Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Common Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of the Common Securities.
(b) The Common Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Common Guarantee Trustee shall have received
written notice, or unless a Responsible Officer of the Common Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge thereof.
-6-
SECTION 2.8. Conflicting Interests
The Declaration shall be deemed to be specifically described in this
Common Securities Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
COMMON GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Common Guarantee Trustee
(a) This Common Securities Guarantee shall be held by the Common
Guarantee Trustee for the benefit of the Holders of the Common Securities, and
the Common Guarantee Trustee shall not transfer this Common Securities Guarantee
to any Person except a Holder of Common Securities exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Common Guarantee Trustee on
acceptance by such Successor Common Guarantee Trustee of its appointment to act
as Successor Common Guarantee Trustee. The right, title and interest of the
Common Guarantee Trustee shall automatically vest in any Successor Common
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Common Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Common Guarantee Trustee has occurred and is continuing, the Common
Guarantee Trustee shall enforce this Common Securities Guarantee for the benefit
of the Holders of the Common Securities.
(c) The Common Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Common Securities Guarantee, and no implied covenants shall be read into
this Common Securities Guarantee against the Common Guarantee Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Common
Guarantee Trustee, the Common Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Common Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Common Securities Guarantee shall be construed
to relieve the Common Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
-7-
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Common
Guarantee Trustee shall be determined solely by the express
provisions of this Common Securities Guarantee, and the Common
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Common Securities Guarantee, and no implied
covenants or obligations shall be read into this Common
Securities Guarantee against the Common Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Common Guarantee Trustee, the Common Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Common Guarantee
Trustee and conforming to the requirements of this Common
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically
required to be furnished to the Common Guarantee Trustee, the
Common Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Common Securities Guarantee;
(ii) the Common Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Common Guarantee Trustee, unless it shall be proved that the Common
Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Common Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Common Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Common Guarantee Trustee, or exercising any trust or
power conferred upon the Common Guarantee Trustee under this Common
Securities Guarantee; and
(iv) no provision of this Common Securities Guarantee shall
require the Common Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Common Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured
to it under the terms of this Common Securities Guarantee or indemnity,
reasonably satisfactory to the Common Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Common Guarantee Trustee
-8-
(a) Subject to the provisions of Section 3.1:
(i) The Common Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Common Securities Guarantee shall be sufficiently evidenced by a
Direction (as defined in the Declaration) or an Officers' Certificate.
(iii) Whenever, in the administration of this Common
Securities Guarantee, the Common Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Common Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Common Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Common Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Common Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Common Securities Guarantee from any court of
competent jurisdiction.
(vi) The Common Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Common
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Common Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Common Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Common Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Common Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Common Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Common Securities Guarantee.
-9-
(vii) The Common Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Common Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(viii) The Common Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Common Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(ix) Any action taken by the Common Guarantee Trustee or its
agents hereunder shall bind the Holders of the Common Securities, and
the signature of the Common Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Common
Guarantee Trustee to so act or as to its compliance with any of the
terms and provisions of this Common Securities Guarantee, both of which
shall be conclusively evidenced by the Common Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Common Securities
Guarantee the Common Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Common Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation
amount of the Common Securities, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(b) No provision of this Common Securities Guarantee shall be deemed to
impose any duty or obligation on the Common Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the Common
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Common Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Common Guarantee Trustee does not assume
any responsibility for their correctness. The Common Guarantee Trustee makes no
representation as to the validity or sufficiency of this Common Securities
Guarantee.
-10-
ARTICLE IV.
COMMON GUARANTEE TRUSTEE
SECTION 4.1. Common Guarantee Trustee; Eligibility
(a) There shall at all times be a Common Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Common Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Common Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2 (c).
(c) If the Common Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Common Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Common Guarantee
Trustees
(a) Subject to Section 4.2(b), the Common Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Common Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Common Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Common Guarantee Trustee and delivered to the Guarantor.
(c) The Common Guarantee Trustee appointed to office shall hold office
until a Successor Common Guarantee Trustee shall have been appointed or until
its removal or resignation. The Common Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Common Guarantee Trustee
-11-
and delivered to the Guarantor, which resignation shall not take effect until
a Successor Common Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Common
Guarantee Trustee and delivered to the Guarantor and the resigning Common
Guarantee Trustee.
(d) If no Successor Common Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning Common
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Common Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Common Guarantee Trustee.
(e) No Common Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Common Guarantee Trustee.
(f) Upon termination of this Common Securities Guarantee or removal or
resignation of the Common Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Common Guarantee Trustee all amounts accrued to the
date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected
-12-
The obligations, covenants, agreements and duties of the Guarantor
under this Common Securities Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Common Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Common Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Common
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Common Guarantee Trustee in
respect of this Common Securities Guarantee or
-13-
exercising any trust or power conferred upon the Common Guarantee Trustee
under this Common Securities Guarantee.
(b) If the Common Guarantee Trustee fails to enforce this Common
Securities Guarantee, any Holder of Common Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Common Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Common Guarantee Trustee or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a holder of Common Securities may directly institute a proceeding
against the Guarantor for enforcement of the Common Security Guarantee for such
payment.
SECTION 5.5. Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 5.6. Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Common Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Common Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Common Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Common Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions
So long as any Common Securities remain outstanding, if there shall
have occurred an Event of Default or an event of default under the Declaration,
then (a) the Guarantor shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase,
-14-
acquire or make a liquidation payment with respect to, any of its capital
stock (other than (i) purchases or acquisitions of shares of its common stock
in connection with the satisfaction by the Guarantor of its obligations under
any employee benefit plans or the satisfaction by the Guarantor of its
obligations pursuant to any contract or security requiring the Guarantor to
purchase shares of its common stock, (ii) as a result of a reclassification
of its capital stock or the exchange or conversion of one class or series of
its capital stock for another class or series of its capital stock or (iii)
the purchase of fractional interests in shares of its capital stock pursuant
to the conversion or exchange provisions of such capital stock or security
being converted or exchanged) or make any guarantee payment with respect
thereto, (b) the Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Guarantor which rank pari passu with or
junior to the Debentures or (c) the Guarantor shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Common
Securities Guarantee Agreement).
SECTION 6.2. Ranking
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor except those liabilities of
the Guarantor made pari passu or subordinate by their terms, (ii) pari passu
with the most senior common or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any common or preference stock of any Affiliate of the Guarantor,
and (iii) senior to the Guarantor's common stock.
If an Event of Default has occurred and is continuing under the
Declaration, the rights of the Holders of the Common Securities to receive
Guarantee Payments under this Common Securities Guarantee shall be subordinated
to the rights of the holders of the Preferred Securities to receive payment of
all amounts due and owing under the terms of the Preferred Securities Guarantee.
ARTICLE VII.
TERMINATION
SECTION 7.1. Termination
This Common Securities Guarantee shall terminate upon (i) full payment
of the Redemption Price of all Common Securities, (ii) upon the distribution of
the Debentures to the Holders of all of the Common Securities or (iii) upon full
payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. Notwithstanding the foregoing, this Common Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Common Securities must restore payment of any
sums paid under the Common Securities or under this Common Securities Guarantee.
-15-
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1. Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Common
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Common Securities Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Common Securities might properly be paid.
SECTION 8.2. Indemnification
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.2(a).
-16-
(c) The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of the Common Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Successors and Assigns
All guarantees and agreements contained in this Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 9.2. Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Common Securities Guarantee may only be amended with the prior approval of the
Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all the outstanding Common Securities. The provisions of Section
12.2 of the Declaration with respect to meetings of Holders of the Securities
apply to the giving of such approval.
SECTION 9.3. Notices
All notices provided for in this Common Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Common Guarantee Trustee, at the Common Guarantee
Trustee's mailing address set forth below (or such other address as the Common
Guarantee Trustee may give notice of to the Holders of the Common Securities):
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
-17-
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Northern States Power Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(c) If given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4. Benefit
This Common Securities Guarantee is solely for the benefit of the
Holders of the Common Securities and, subject to Section 3.1(a), is not
separately transferable from the Common Securities.
SECTION 9.5. Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MINNESOTA.
-18-
THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
NORTHERN STATES POWER COMPANY, as Guarantor
By:
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
WILMINGTON TRUST COMPANY, as Common
Guarantee Trustee
By:
-------------------------------------------
Name:
Title: