Exhibit 4.13
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COMMON SECURITIES GUARANTEE AGREEMENT
NSP Financing I
Dated as of January 31, 1997
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TABLE OF CONTENTS
PAGE
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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 . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 9.1. Successors and Assigns . . . . . . . . . . . . . . . . . .17
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
January 31, 1997, is executed and delivered by Northern States Power Company, a
Minnesota 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, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof 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,
the 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, the 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 (as
defined in the Indenture), 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.
"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
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principally administered, which office at the date of execution of this
Agreement is located at Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890, 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.
"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 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.
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"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.
"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.
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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
Guarantor shall not 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. 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
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.
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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.
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.
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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:
(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
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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
(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.
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(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.
(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.
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(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.
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:
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(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 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
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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.
SECTION5.3. Obligations Not Affected
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;
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(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 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
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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, 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
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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.
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
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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).
(c) The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of the Common Securities Guarantee.
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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
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(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
414 Nicollet Mall
Minneapolis, Minnesota 55401
Attention: Edward J. McIntyre
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(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.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first
above written.
NORTHERN STATES POWER COMPANY, as Guarantor
By: /s/ Edward J. McIntyre
----------------------------------------------
Name: Edward J. McIntyre
Title: Vice President and Chief Financial
Officer
WILMINGTON TRUST COMPANY, as Common
Guarantee Trustee
By: /s/ Donald G. MacKelcan
----------------------------------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
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