[Letterhead of Richards, Layton & Finger]
August 7, 1996
Southwestern Public Service Capital I
c/o Southwestern Public Service Company
Tyler at Sixth
Amarillo, Texas 79101
Re: Southwestern Public Service Capital I
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Ladies and Gentlemen:
We have acted as special Delaware counsel for Southwestern Public
Service Company, a New Mexico corporation ("Southwestern"), and Southwestern
Public Service Capital I, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of June 5, 1996
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on June 5, 1996;
(b) The Trust Agreement of the Trust, dated as of June 5, 1996,
between David M. Wilks, as initial depositor, and the trustees of the Trust
named therein;
(c) The registration statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-05289), filed by Southwestern and the Trust
with the Securities and Exchange Commission ("SEC") on June 5, 1996, as amended
by
Southwestern Public Service Capital I
August 7, 1996
Page 2
Amendment No. 1 to the Initial Registration Statement, including a related
preliminary prospectus, as supplemented by a preliminary prospectus supplement
(as supplemented, the "Prospectus"), relating to the __% Cumulative Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by Southwestern and the Trust
with the SEC on or about August 7, 1996 ("Amendment No. 1") (the Initial
Registration Statement, as amended by Amendment No. 1, is hereinafter referred
to as the "Registration Statement");
(d) A form of Amended and Restated Trust Agreement of the Trust, among
Southwestern, the trustees of the Trust named therein, and the holders, from
time to time, of undivided beneficial interests in the assets of the Trust,
attached to the Prospectus as Exhibit "A" (the "Trust Agreement"); and
(e) A Certificate of Good Standing for the Trust, dated August 7,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under
Southwestern Public Service Capital I
August 7, 1996
Page 3
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Security
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
ss. 3801, et seq.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
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August 7, 1996
Page 4
We understand that Cahill Gordon & Reindel ("Cahill") will rely as to
matters of Delaware law upon this opinion in connection with an opinion to be
rendered by it on the date hereof relating to the Trust. In connection with the
foregoing, we hereby consent to Cahill's relying as to matters of Delaware law
upon this opinion. Furthermore, we consent to the filing of this opinion with
the SEC as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the SEC
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER