NORTHERN STATES POWER COMPANY
(A WISCONSIN CORPORATION)
FIRST MORTGAGE BONDS
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Northern States Power Company, a Wisconsin corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives"), its First Mortgage Bonds of the designation, with the terms
and in the aggregate principal amount specified in Schedule I hereto (the
"Bonds") to be issued under its Trust Indenture, dated as of April 1, 1947, from
the Company to Firstar Trust Company (formerly known as First Wisconsin Trust
Company), as trustee (the "Trustee"), as heretofore supplemented and amended by
supplemental trust indentures, including the Supplemental and Restated Trust
Indenture dated March 1, 1991, and as to be further supplemented and amended by
a supplemental trust indenture relating to the Bonds (such Trust Indenture as so
supplemented and amended and as to be so supplemented and amended being
hereinafter referred to as the "Indenture"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives," as used herein, shall each
be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form, including a prospectus, for the registration under
the Act of the Bonds, which registration statement has become effective.
Such registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement (which
date is set forth in Schedule I hereto). Any such amendment or supplement
was filed with the Commission and any such amendment has become effective.
The Company will file with the Commission a prospectus supplement (the
"Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or
Rule 434 under the Act. Copies of such registration statement and
prospectus, any such amendment or supplement and all documents incorporated
by reference therein which were filed with the Commission on or prior to the
date of this Agreement have been delivered to you and copies of the
Prospectus Supplement will be delivered to you promptly after it is filed
with the Commission. Such registration statement as amended prior to the
date of this Agreement, and such prospectus, as amended and supplemented
prior to the date of this Agreement and as supplemented by the Prospectus
Supplement, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement and, if the Company
files any document pursuant to the Exchange Act after the date of this
Agreement and prior to the termination of the offering of the Bonds by the
Underwriters, which documents are deemed to be incorporated by reference
into the Prospectus, the term "Prospectus" shall refer also to said
prospectus as supplemented by the documents so filed from and after the time
said documents are filed with the
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Commission. There are no contracts or documents of the Company that are
required to be filed as exhibits to the Registration Statement or any
documents incorporated by reference therein by the Act, the Exchange Act or
the rules and regulations thereunder which have not been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the
Registration Statement, at the date of this Agreement, complied in all
material respects with the requirements of the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and the respective rules and
regulations thereunder and did not contain any untrue statement of a
material fact or omit any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, at
the time the Prospectus Supplement is filed with the Commission and at the
Closing Date (as hereinafter defined), the Prospectus will comply in all
material respects with the Act and the rules and regulations thereunder and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement or Prospectus.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any documents so filed and incorporated by
reference subsequent to the date of this Agreement will, when they are filed
with the Commission, conform in all material respects to the requirements of
the Exchange Act, and the rules and regulations of the Commission
thereunder; and none of such documents include or will include any untrue
statement of a material fact or omit or will omit to state any material fact
required to be stated therein or necessary to make the statements therein in
the light of the circumstances under which they were made not misleading.
(d) Deloitte & Touche LLP and Price Waterhouse LLP, which audited
certain of the financial statements incorporated by reference in the
Registration Statement, are each independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
(e) The financial statements of the Company filed as a part of or
incorporated by reference in the Registration Statement or Prospectus fairly
present the financial position of the Company as of the dates indicated and
the results of its operations and changes in financial position for the
periods specified, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as disclosed in the Prospectus Supplement. The
unaudited pro forma financial information incorporated by reference in the
Registration Statement and the Prospectus complies in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation S-X
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of such information.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Wisconsin with
due corporate authority to carry on the business in which it is engaged and
to own and operate the properties used by it in such business, as described
in the Prospectus; the Company is qualified to do business as a foreign
corporation and is in good standing under the laws of the State of Michigan;
and the Company is not required by the nature of its business to be licensed
or qualified as a foreign corporation in any other state or jurisdiction;
and, except as set forth in the Prospectus Supplement, the Company has all
material licenses and approvals required at the date hereof to conduct its
business.
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(g) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus (except for subsequent issuance, if any,
pursuant to reservations or agreements referred to therein); the shares of
issued and outstanding capital stock of the Company have been duly and
validly issued, are fully paid and non-assessable and are owned by Northern
States Power Company, a Minnesota corporation.
(h) The Company has not sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus Supplement; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus Supplement, the Company has not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, which are material to
the Company, and there has not been any material change in the capital stock
or long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus Supplement.
(i) Neither the execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Bonds, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof, nor
compliance with the terms and provisions of this Agreement, the Bonds and
the Indenture will conflict with, or result in the breach of, any of the
terms, provisions or conditions of the Restated Articles of Incorporation,
as amended, or By-laws of the Company, or of any contract, agreement or
instrument to which the Company is a party or in which the Company has a
beneficial interest or by which the Company is bound or of any order, rule
or regulation applicable to the Company of any court or of any federal or
state regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or over its properties.
(j) The Bonds have been duly authorized for issuance and sale pursuant
to this Agreement and, when executed and authenticated in accordance with
the Indenture and delivered and paid for as provided herein, will be duly
issued and will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited by bankruptcy,
insolvency and other laws affecting enforcement of creditors' rights, and
will be entitled to the benefits of the Indenture which will be
substantially in the form heretofore delivered to you.
(k) The Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting enforcement of creditors'
rights.
(l) The Public Service Commission of Wisconsin has issued its order
authorizing the issuance and sale of the Bonds on terms consistent with this
Agreement. Each other consent, approval, authorization, order, registration
or qualification of or with any regulatory public body, state or federal,
that is, or will be at the Closing Date, necessary in connection with the
issuance and sale of the Bonds pursuant to this Agreement has been or will
be obtained, other than approvals that may be required under state
securities laws.
(m) The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to Permitted Encumbrances (as defined in
the Indenture).
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(n) Other than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceedings pending to which the Company is a party
or of which any property of the Company is the subject which, if determined
adversely to the Company, would individually or in the aggregate have a
material adverse effect on the financial position, stockholders' equity or
results of operations of the Company; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(o) The Company has all necessary power under statutory provisions or
permits to use its operating electric and gas properties.
(p) The Company has no "significant subsidiary", within the meaning of
Rule 1.02(v) of Regulation S-X under the Act.
(q) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus Supplement, the Company (A) is
in compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) has received all permits, licenses
or other approvals required of it under applicable Environmental Laws to
conduct its business and (C) is in compliance with all terms and conditions
of any such permits, licenses or approvals, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to the Representatives and each other Underwriter, and the Representatives
and each other Underwriter agree, severally and not jointly, to purchase from
the Company, at the purchase price set forth in Schedule I hereto, the
respective principal amounts of the Bonds set forth opposite their respective
names in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Bonds shall be
made at the place, date and time specified in Schedule I hereto (or such other
place, date and time not later than eight full business days thereafter as the
Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form. Any Bonds delivered in temporary
form will be exchangeable without charge for Bonds in definitive form. The Bonds
will be registered in the names of the Underwriters and in the principal amounts
set forth in Schedule II hereto except that if the Company receives a written
request from the Representatives prior to noon on the third business day
preceding the Closing Date giving the names in which the Bonds are to be
registered and the principal amounts thereof (which shall in each case be a
multiple of $1,000) the Company will deliver the Bonds so registered. The Bonds
will be made available to the Representatives for checking in New York, New
York, not later than 2:00 p.m., New York time, on the business day preceding the
Closing Date.
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4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424(b) and/or Rule 434
under the Act and will notify the Representatives promptly of such filing.
During the period for which a prospectus relating to the Bonds is required
to be delivered under the Act, the Company will promptly advise the
Representatives (i) when any amendment to the Registration Statement shall
have become effective, (ii) when any subsequent supplement to the Prospectus
(including documents deemed to be incorporated by reference into the
Prospectus) has been filed, (iii) of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings
for that purpose. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (including documents
deemed to be incorporated by reference into the Prospectus) unless the
Company has furnished to the Representatives a copy for their review prior
to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Bonds is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules and regulations of the Commission thereunder,
the Company promptly, subject to paragraph (a) of this Section 4, will
prepare and file an amendment or supplement to the Prospectus with the
Commission or will make a filing with the Commission pursuant to Section 13
or 14 of the Exchange Act, which will correct such statement or omission or
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not
be audited) of the Company, for a twelve-month period beginning after the
date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule
434 under the Act, as soon as is reasonably practicable after the end of
such period, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined Rule 158(c) under
the Act), which will satisfy the provision of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at the
option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T-1 of the Trustee and all powers of attorney,
consents and exhibits filed therewith (other than exhibits incorporated by
reference), and will deliver to the Representatives conformed copies of the
Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, all amendments of and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Bonds for sale under
the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the Bonds; PROVIDED that the Company shall not be required
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
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(f) So long as the Bonds are outstanding, the Company will furnish (or
cause to be furnished) to each of the Representatives, upon request, copies
of (i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or
otherwise dispose of any first mortgage bonds of the Company (except under
prior contractual commitments which have been disclosed to the
Representatives), without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
5. EXPENSES. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and accountants,
all costs and expenses incident to the preparing, printing and filing of the
Registration Statement (including all exhibits thereto), the Prospectus
(including all documents incorporated by reference therein) and any amendments
thereof or supplements thereto, all costs and expenses (including fees and
expenses of counsel) incurred in connection with "blue sky" qualifications, the
determination of the legality of the Bonds for investment by institutional
investors and the rating of the Bonds, and all costs and expenses of the
printing and distribution of all documents in connection with this underwriting.
Except as provided in this Section 5 and Section 8 hereto, the Underwriters will
pay all their own costs and expenses, including the fees of their counsel and
any advertising expenses in connection with any offer they may make.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Bonds shall be subject, in the discretion of
the Representatives, to the accuracy of the representatives and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission, and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of John P. Moore, Jr., General Counsel and Secretary of the
Company, substantially in the form included as Exhibit A.
(c) The Representatives shall have received from Gardner, Carton &
Douglas, Chicago, Illinois, counsel for the Underwriters, such opinion or
opinions dated the Closing Date with respect to the incorporation of the
Company, this Agreement, the validity of the Indenture, the Bonds, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
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(d) The Company shall have furnished to the Underwriters the opinion of
Loomis, Ewert, Parsley, Davis & Gotting, special Michigan counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company is duly authorized as a foreign corporation under the
laws of the State of Michigan and has corporate power, right and
authority to do business in the State of Michigan in the manner as set
forth in the Prospectus to the extent it is authorized to transact such
business in the State of Wisconsin, and to own property in the State of
Michigan in the manner set forth in the Prospectus;
(ii) the Indenture is in proper form, conforming to the laws of the
State of Michigan, to give and create the lien which it purports to
create as to the property therein described and located in the State of
Michigan assuming that the Company holds marketable record title to such
property, except that the lien of the Indenture may not be effective as
to a bona fide purchaser (including a mortgagee) for value of any
after-acquired real property from the Company, unless a supplemental
indenture to the Trustee specifically describing such property has been
duly recorded prior to such purchase or the effective date of recording
of such other lien; and the Indenture is duly and properly recorded or
filed in all places in Michigan necessary to effectuate the lien of the
Indenture as to said property;
(iii) the Company has all necessary power under Michigan statutory
provisions and has all necessary franchises to use its operating electric
and gas properties in Michigan, except that no determination has been
made whether the Company or its Michigan predecessor has secured permits
and approvals, if any, required by the Wetlands Protection Act, 1979 PA
302, and except that the Company does not have electric franchises in the
cities of Ironwood, Bessemer and Wakefield, County of Gogebic, State of
Michigan. However, counsel for the Company, Aberg, Bell, Blake & Metzner,
rendered an opinion on April 19, 1968, that municipal franchises were not
required for the cities of Ironwood and Bessemer; and
(iv) No approval, authorization, consent, certificate or order of any
Michigan commission or regulatory authority is required in connection
with the issuance and sale of the Bonds by the Company to the
Underwriters as provided in this Agreement except as may be required
under state securities laws.
(e) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in paragraph (a) and (i) of this
Section 6 and to the further effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date, and
(ii) there has been no material adverse change in the condition of
the Company, financial or otherwise, or in the earnings, affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business, from that set forth or contemplated by the
Registration Statement or Prospectus Supplement.
(f) The Representatives shall have received letters from the Company's
independent public accountants (dated the date of this Agreement and Closing
Date, respectively, and in form and substance satisfactory to the
Representatives) advising that (i) they are independent public accountants
as required by the Act and published rules and regulations of the Commission
thereunder, (ii) in their opinion, the financial statements and financial
statement schedules incorporated by reference in the Registration Statement
and covered by their opinion filed with the Commission under Section 13 of
the Exchange Act comply as to form in all material respects
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with the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder, (iii) they have performed
limited procedures, not constituting an audit, including a reading of the
latest available interim financial statements of the Company, a reading of
the minutes of meetings of the Board of Directors, committees thereof, and
of the Shareholders, of the Company since the date of the most recent
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for financial
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that:
(a) any material modifications should be made to any unaudited financial
statements of the Company included or incorporated by reference in the
Registration Statement or Prospectus for them to be in conformity with
generally accepted accounting principles or any unaudited financial
statements of the Company included or incorporated by reference in the
Registration Statement or Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the rules and regulations of the Commission applicable to
Form 10-Q; (b) with respect to the period subsequent to the date of the most
recent financial statements included or incorporated by reference in the
Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter, in the capital
stock of the Company, increases in long-term debt or decreases in
stockholders' equity or net current assets of the Company as compared with
the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated by reference in the
Prospectus to such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in operating revenues,
operating income, or net income, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representatives; (iv)
they have carried out specified procedures performed for the purpose of
comparing certain specified financial information and percentages (which is
limited to financial information derived from general accounting records of
the Company) included or incorporated by reference in the Registration
Statement and Prospectus with indicated amounts in the financial statements
or accounting records of the Company and (excluding any questions of legal
interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the
Company referred to in such letter in the description of the procedures
performed by them; and (v) on the basis of a reading of the unaudited pro
forma financial information incorporated by reference in the Registration
Statement and the Prospectus, carrying out certain specified procedures that
would not necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (v), inquiries of certain officials of
the Company who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited pro forma financial
information, nothing came to their attention that caused them to believe
that the unaudited pro forma financial information does not comply in form
in all material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
information.
(g) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been
any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6 which makes it impractical or inadvisable in
the judgment of the Representatives to proceed with the public offering or
the delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
(h) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change
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that does not indicate the direction of the possible change, in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act.
(i) (i) The Company shall not have sustained since the date of the
latest audited financial statements included or incorporated by reference in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus Supplement,
and (ii) since the date of this Agreement, the Company shall not have
incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, which are
material to the Company, and there shall not have been any change in the
capital stock or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in
clause (i) or (ii) is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Bonds on the terms and in the manner
contemplated by the Prospectus.
(j) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in the opinion of
counsel for the Underwriters is material or omits to state a fact which in
the opinion of counsel for the Underwriters is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(k) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they
may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or facsimile transmission confirmed in writing.
7. CONDITIONS OF COMPANY'S OBLIGATIONS. The obligations of the Company to
sell and deliver the Bonds are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge
of the Company or the Representatives, threatened.
(b) The order of the Public Service Commission of Wisconsin referred to
in paragraph (l) of Section 1 shall be in full force and effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice of
such cancellation shall be given to the Underwriters in writing or by telephone
or facsimile transmission confirmed in writing.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Bonds.
9
9. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Bonds
as originally filed or in any amendment thereof, or in the Prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investing or defending any such
loss, claim, damage, liability or action; PROVIDED that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
therein and PROVIDED FURTHER that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Bonds which are the subject thereof if such person was not sent or given a
copy of the Prospectus (but without the documents incorporated by reference
therein) at or prior to the confirmation of the sale of such Bonds to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such prospectus was
corrected in the Prospectus in a timely manner and in sufficient quantities to
permit such delivery by the Underwriters. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED
THAT if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party, or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election to to assume the defense
10
of such action and approval by the indemnifying party of counsel, the
indemnifying party will not be liable to such indemnifying party under this
Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnifying party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnifying parties under paragraphs (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnifying party to represent the indemnifying
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnifying party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party under paragraph (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand from the
offering of the Bonds. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under paragraph (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this paragraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this paragraph (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Bonds underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this paragraph
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to
11
each person, if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
10. DEFAULT BY AN UNDERWRITER. (a) If any Underwriter shall default in its
obligation to purchase the Bonds which it has agreed to purchase hereunder (in
this Section called "Unpurchased Bonds"), the Representatives may in their
discretion arrange for themselves or any party or other parties to purchase such
Unpurchased Bonds on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Unpurchased Bonds, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Unpurchased
Bonds on such terms. If the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Unpurchased Bonds, the Representatives or the Company shall
have the right to postpone the Closing Date for such Unpurchased Bonds for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Unpurchased Bonds.
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate principal amount of such Unpurchased Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made, but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in paragraph (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, as referred
to in paragraph (b) above, if the Company shall not exercise the right described
in paragraph (b) above to require non-defaulting Underwriters to purchase
Unpurchased Bonds of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Bonds, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by federal, Wisconsin or New
York State authorities, (iii) trading in any securities of the Company shall
have been suspended or halted, or (iv) there shall have occurred any outbreak or
exclamation of hostilities involving the United States or the declaration by the
United States of a war or national emergency or any other calamity or crisis the
effect of
12
which on the financial markets in the United States is such as to make it, in
the judgment of the Representatives, impracticable or inadvisable to proceed
with the public offering or delivery of the Bonds on the terms and in the manner
contemplated in the Prospectus.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, of its officers and of the Underwriters set forth in or made pursuant
to the Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Bonds. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. NOTICES. All communications hereunder will be in writing and, if sent
to the Representatives, will be mailed, delivered or transmitted and confirmed
to them at their address set forth for that purpose in Schedule I hereto or, if
sent to the Company, will be mailed, delivered or transmitted and confirmed to
it at 100 North Barstow Street, Eau Claire, Wisconsin 54701, attention
Secretary.
14. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 9 hereof, and no other
person will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Wisconsin.
16. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which, taken together, shall constitute a single agreement among the parties to
such counterparts.
17. REPRESENTATION OF THE UNDERWRITERS. The Representatives represent and
warrant to the Company that they are authorized to act as the representatives of
the Underwriters in connection with this financing and that the Representatives'
execution and delivery of this Agreement and any action under this Agreement
taken by such Representatives will be binding upon all Underwriters.
18. OTHER. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
13
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By /s/ NEAL A. SIIKARLA
-----------------------------------
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BEAR, STEARNS & CO. INC.
By /s/ LEWIS A. SACHS
-----------------------------------
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By ___________________________________
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
By ___________________________________
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By ___________________________________
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH & CO.
By ___________________________________
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
NORTHERN STATES POWER COMPANY
By ___________________________________
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By ___________________________________
FOR ITSELF OR THEMSELVES AND AS
REPRESENTATIVES OF THE SEVERAL
UNDERWRITERS, IF ANY, NAMED IN
SCHEDULE II TO THE FOREGOING
AGREEMENT.
14
SCHEDULE I
Underwriting Agreement dated December 12, 1996
Registration Statement No. 333-03173
Representatives and Addresses: Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Bonds:
Designation: First Mortgage Bonds, Series due December 1, 2026,
7 3/8%
Principal Amount: $65,000,000
Supplemental Indenture dated as of December 1, 1996
Date of Maturity: December 1, 2026
Interest Rate: 7 3/8% per annum, payable June 1 and December 1 of each
year, commencing June 1, 1997
Purchase Price: 99.017% of the principal amount thereof, plus accrued
interest, if any, from December 1, 1996 to the date of
payment and delivery.
Public Offering Price: 99.587% of the principal amount thereof, plus
accrued interest, if any, from December 1, 1996
to the date of payment and delivery.
Payment to be made in federal (same day) funds. _X_ Yes ____ No
Closing Date and Location: December 19, 1996
Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Delivery of Bonds: The Depository Trust Company
55 Water Street
New York, New York 10041
Office for Payment of Bonds: Northern States Power Company
414 Nicollet Mall
Minneapolis, MN 55401
Office for Checking of Bonds: The Depository Trust Company
55 Water Street
New York, New York 10041
15
SCHEDULE II
PRINCIPAL
AMOUNT OF
NAME OF UNDERWRITER BONDS
--------------
Bear, Stearns & Co. Inc........................................................................... $ 65,000,000
--------------
Total................................................................................. $ 65,000,000
--------------
--------------
16
EXHIBIT A
FORM OF OPINION OF JOHN P. MOORE, JR.
RE: $65,000,000 PRINCIPAL AMOUNT OF FIRST MORTGAGE BONDS, SERIES DUE DECEMBER 1,
2026, 7 3/8%
OF NORTHERN STATES POWER COMPANY, A WISCONSIN CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the proceedings
taken by Northern States Power Company, a Wisconsin corporation, herein called
the "Company," with respect to the issue and sale by the Company of $65,000,000
principal amount of First Mortgage Bonds, Series due December 1, 2026, 7 3/8%
herein called the "Bonds." In connection therewith, I have participated in the
preparation of the proceedings for the issuance and sale of the Bonds, including
the Underwriting Agreement dated December 12, 1996 (the "Underwriting
Agreement") between you and the Company relating to your purchase of the Bonds,
and have either participated in the preparation of or examined the Trust
Indenture dated April 1, 1947, the 12 Supplemental Trust Indentures thereto, the
Supplemental and Restated Trust Indenture dated March 1, 1991, and the
Supplemental Trust Indenture dated as of December 1, 1996, creating the Bonds,
all from the Company to Firstar Trust Company (formerly known as First Wisconsin
Trust Company), as Trustee (which Trust Indenture and Supplemental Trust
Indentures are herein collectively called the "Indenture"). I have also
participated in the preparation of or examined the registration statement and
the accompanying prospectuses and any supplements thereto, as filed under the
Securities Act of 1933, as amended (herein called the "Act"), with respect to
the Bonds. The terms "Registration Statement" and "Prospectus" as used herein
shall have the meanings ascribed to such terms by the Underwriting Agreement. My
examination has extended to all statutes, records, instruments, and documents
which I have deemed necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company is a legally existing corporation under the laws of the
State of Wisconsin; has corporate power, right, and authority to do business
and to own property in the State of Wisconsin in the manner and as set forth
in the Prospectus; has no "significant subsidiaries" within the meaning of
Rule 1.02(v) of Regulation S-X under the Act; and has corporate power,
right, and authority to make the Indenture and issue and sell the Bonds;
2. The authorized capital stock of the Company is as set forth in the
Prospectus and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable
and are owned by Northern States Power Company, a Minnesota corporation;
3. The Underwriting Agreement has been duly authorized, executed, and
delivered by the Company and is a valid and binding obligation of the
Company, except to the extent that the provisions for indemnities in the
Underwriting Agreement may be held to be unenforceable as against public
policy.
4. The Indenture has been duly authorized by appropriate corporate
proceedings on the part of the Company, has been duly executed and delivered
and constitutes a legal, valid, and binding instrument enforceable in
accordance with its terms, except as the provisions of the United States
Bankruptcy Code may affect the validity of the lien thereof with respect to
proceeds, products, rents, issues, or profits realized, and additional
property acquired, after the commencement of a case under said Code, and
except as enforcement of the provisions of the Indenture may be limited by
the laws of the States of Michigan and Wisconsin (where property covered
thereby is located) affecting the remedies for the enforcement of the
security provided in
1
the Indenture (which states' laws do not in my opinion make such remedies
inadequate for realization of the benefits of such security) or except as
the same may be limited by bankruptcy or insolvency laws or other similar
laws; and the Indenture constitutes a valid mortgage effective to create a
lien for the security of the Bonds upon the property now owned by the
Company therein specifically described as subject to the lien thereof,
except as otherwise provided therein with respect to specific property or
classes of property;
5. The Indenture is in proper form, conforming to the laws of the State
of Wisconsin, to give and create the lien which it purports to create and
has been and now is duly and properly recorded or filed in all places in the
State of Wisconsin necessary to effectuate the lien of the Indenture.
6. The Company has good and valid title to all real and fixed property
and leasehold rights described or enumerated in the Indenture (except such
properties as have been released from the lien thereof in accordance with
the terms thereof), subject only to: (A) taxes and assessments not yet
delinquent; (B) the lien of the Indenture; (C) as to parts of the Company's
property, certain easements, conditions, restrictions, leases, and similar
encumbrances which do not affect the Company's use of such property in the
usual course of its business, certain minor defects in titles which are not
material, defects in titles to certain properties which are not essential to
the Company's business, and mechanics' lien claims being contested or not of
record or for the satisfaction or discharge of which adequate provision has
been made by the Company pursuant to the Indenture. This opinion does not
cover titles to easements for water flowage purposes or rights of way for
electric and or gas transmission and distribution facilities, but the
Company has the power of eminent domain in the states in which it operates
and such power may be utilized by the Company to cure defects in title to
its real property;
7. The Bonds are secured by and entitled to the benefits of the
Indenture equally and ratably, except as to sinking fund provisions, with
all other bonds duly issued and outstanding under the Indenture by a valid
and direct first mortgage lien of the Indenture on all of the real and fixed
properties, leasehold rights, franchises, and permits now owned by the
Company, subject only to the exceptions set forth in Paragraph 6 above;
8. The Bonds also are secured equally and ratably, except as to sinking
fund provisions, with all other bonds duly issued and outstanding under the
Indenture by a valid and direct first mortgage lien (subject to Permitted
Encumbrances as defined in the Indenture) on all real and fixed property
hereafter acquired by the Company in conformity with the terms of the
Indenture, except as the United States Bankruptcy Code may affect the
validity of the lien of such Indenture on property acquired after the
commencement of a case under such Code, except as to the prior lien of the
Trustee under the Indenture in certain events specified therein, and except
as otherwise provided in the Indenture in the case of consolidation, merger,
or transfer of all the mortgaged and pledged property as an entirety;
9. The issuance of the Bonds in accordance with the terms of the
Indenture and the sale and delivery thereof pursuant to the provisions of
the Underwriting Agreement has been duly authorized by the Company; the
statements made under the captions "Description of New Bonds" and
"Supplemental Description of Offered Bonds" in the Prospectus, insofar as
they purport to summarize provisions of documents specifically referred to
therein, fairly present the information called for with respect thereto by
Form S-3; the Bonds are in due legal form, constitute legal, valid, and
binding obligations of the Company, and (subject to the qualification
expressed in Paragraph 4 above with respect to the validity and
enforceability of certain of the provisions of the Indenture) are
enforceable in accordance with their terms;
10. The consummation of the transactions contemplated in the
Underwriting Agreement and the fulfillment of the terms thereof and
compliance by the Company with all the terms and provisions of the Indenture
will not result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument known to me to which the Company is a party or by
which it is bound, or the Restated
2
Articles of Incorporation, as amended, or By-laws of the Company or, to the
best of my knowledge, any order, rule or regulation applicable to the
Company of any court or of any federal or state regulatory body or
administrative agency or other governmental body having jurisdiction over
the Company or its property;
11. The Registration Statement has become effective under the Act. The
Prospectus Supplement (as defined in the Underwriting Agreement) has been
filed pursuant to Rule 424(b) under the Act and no proceedings for a stop
order have been instituted or to my knowledge are pending or threatened
under Section 8(d) of the Act; the Public Service Commission of Wisconsin
has issued its order authorizing the issuance and sale of the Bonds; the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended; and no further approval of, authorization, consent certificate or
order of any governmental body, federal, state or other, is required in
connection with the issuance and sale of the Bonds by the Company to you as
provided in the Underwriting Agreement, except as may be required by "blue
sky" or state securities laws;
12. At the time the Registration Statement became effective and at the
date of the Underwriting Agreement, the Registration Statement (other than
the financial statements and supporting schedules included therein, as to
which no opinion is rendered) complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder;
13. I do not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required, nor of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
14. The Company has all necessary power under statutory provisions and
permits to use its operating electric and gas properties; and
15. All statements contained in the Registration Statement and
Prospectus purporting to set forth my opinion or to be based upon my opinion
correctly set forth my opinion on said respective matters.
In the course of my participation in the preparation of the Registration
Statement and Prospectus I made investigations as to the accuracy of certain of
the statements of fact contained therein, I discussed other matters with
officers, employees and representatives of the Company, and I examined various
corporate records and data. While I do not pass upon and do not assume
responsibility for and shall not be deemed to have independently verified the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus (except as to matters set forth in Paragraphs 12 and 15 above),
nothing has come to my attention that would lead me to believe that the
Registration Statement at the time it became effective or at the date of the
Underwriting Agreement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus at the date of
the Underwriting Agreement or as of the date hereof contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving my opinion under Paragraph 6 above, I have relied upon
examinations of abstracts of titles to properties of the Company, said abstracts
bearing various dates, and nothing has come to my attention which would lead me
to believe that anything has occurred since the dates of the abstracts
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which would adversely affect the titles shown on the abstracts. In giving
opinions as to titles to property of the Company, I also, in certain instances,
relied upon the opinion of other counsel employed or retained by the Company to
render opinions in respect thereto.
Respectfully submitted,
By ___________________________________
John P. Moore, Jr.
General Counsel
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