Exhibit 1.01
EXECUTION
VERSION
NORTHERN STATES POWER
COMPANY
(a Minnesota
corporation)
UNDERWRITING
AGREEMENT
5.25%
First Mortgage Bonds, Series due March 1,
2018
March 11, 2008
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Barclays Capital
Inc.
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J.P. Morgan Securities
Inc.
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As Representatives of
the Underwriters
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named in
Schedule I hereto
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c/o Barclays Capital
Inc.
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200 Park
Avenue
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New York, NY
10166
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Ladies and
Gentlemen:
Northern States
Power Company, a Minnesota corporation (the “Company”),
proposes to sell to the underwriters named in Schedule I hereto
(the “Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
$500,000,000 principal amount of its First Mortgage Bonds,
Series due March 1, 2018 (the “Bonds”) to be
issued under its Trust Indenture, dated as of February 1,
1937, from the Company to The Bank of New York Trust Company, N.A.,
as successor trustee (the “Trustee”), as previously
amended, supplemented and restated and as to be amended and
supplemented by a supplemental indenture relating to the Bonds
(such Trust Indenture as so supplemented, amended and restated
being hereinafter referred to as the
“Indenture”).
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. Any such amendment or supplement was filed with
the Commission and any such amendment has become effective.
As used in this Agreement:
(i)
“Applicable Time” means 4:45 p.m., New York City
time, on the date of this Agreement;
(ii)
“Effective Date” means any date as of which any part of
such registration statement relating to the Bonds became, or is
deemed to have become, effective under the Act in accordance with
the rules and regulations thereunder;
(iii)
“Final Term Sheet” means the final term sheet in the
form attached as Schedule III hereto and prepared and filed
pursuant to Section 4(a) hereof;
(iv)
“Issuer Free Writing Prospectus” means each “free
writing prospectus” (as defined in Rule 405 under the
Act), including the Final Term Sheet, prepared by or on behalf of
the Company or used or referred to by the Company in connection
with the offering of the Bonds;
(v) “ Preliminary
Prospectus” means any preliminary form of prospectus
supplement relating to the Bonds (together with the base
prospectus in the form in which it appears in the Registration
Statement) which has heretofore been or is required to be filed by
the Company pursuant to Rule 424 under the Act and used prior
to the filing of the Prospectus;
(vi)
“Pricing Disclosure Package” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time, including the pricing
terms of the offering of the Bonds and the terms and conditions of
the Bonds specified in the Final Term Sheet;
(vii)
“Prospectus” means the base prospectus in the
form in which it appears in the Registration Statement together
with the final prospectus supplement relating to the Bonds, in the
form in which it shall be filed by the Company with the Commission
pursuant to Rule 424 under the Act (including the base
prospectus as so supplemented); and
(viii)
“Registration Statement” means, collectively, the
various parts of such registration statement, each as amended as of
the Effective Date for such part, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference
herein to the Registration Statement, the Preliminary Prospectus 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, such filing shall constitute an
amendment or supplement to the Prospectus and 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 Commission. Any reference to the
“most recent Preliminary Prospectus” shall be deemed to
refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to
Rule 424(b) under the Act prior to or on the date hereof
(including for purposes hereof, any documents incorporated by
reference therein prior to or on the date hereof).
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(b)
No order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus, the Registration Statement or Issuer
Free Writing Prospectus has been issued by the Commission and no
proceeding for that purpose has been initiated or threatened by the
Commission; the Registration Statement, on the Effective Date,
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 of the Commission 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
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 of the
Commission 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, in
light of the circumstances under which they were made, 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 the Registration Statement or
Prospectus. Each Preliminary Prospectus and the prospectus
filed as part of the Registration Statement as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 of the Act, complied when so filed in all material
respects with the rules under the Act, and each Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(c) The
documents incorporated by reference in any Preliminary Prospectus
or 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) The
Pricing Disclosure Package, as of the Applicable Time did not, and
as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
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 Pricing Disclosure Package 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 the Pricing Disclosure Package, which information is
specified in Section 10(g) hereof.
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(e) Prior
to the execution of this Agreement, the Company has not made and
will not make (other than the Final Term Sheet) any offer relating
to the Bonds that would constitute an Issuer Free Writing
Prospectus without the prior consent of the Representatives; any
such Issuer Free Writing Prospectus the use of which has been
consented to by the Company and the Representatives is listed on
Schedule II hereto; the Company has complied and will comply with
the requirements of Rule 433 under the Act with respect to any
such Issuer Free Writing Prospectus; any such Issuer Free Writing
Prospectus will not, as of its issue date and through the time the
Bonds are delivered pursuant to Section 3 hereof, include any
information that conflicts with the information contained in the
Registration Statement and the Prospectus; and any such Issuer Free
Writing Prospectus, when taken together with the information
contained in the Registration Statement, any Preliminary Prospectus
and the Prospectus, did not, when issued or filed pursuant to
Rule 433, and does not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(f)
Deloitte & Touche LLP, which audited the consolidated
financial statements and the related financial statement schedule
as of and for the year ended December 31, 2007, incorporated
by reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus from the Company’s
Annual Report on Form 10-K for the year ended
December 31, 2007, is an independent registered public
accounting firm as required by the Act and the rules and
regulations of the Commission thereunder and do not provide to the
Company or its subsidiaries any non-audit services which are
prohibited by Section 10A(g) of the Exchange Act or which
have not been pre-approved in accordance with
Section 10A(h) of the Exchange Act.
(g) The
financial statements of the Company and its consolidated
subsidiaries filed as a part of or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus or
the Prospectus comply in all material respects with the applicable
requirements of the Act and the Exchange Act, as applicable, and
fairly present the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results
of their 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 such
financial statements.
(h) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Minnesota 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 most recent Preliminary
Prospectus; the Company is qualified to do business as a foreign
corporation and is in good standing under the laws of the States of
North Dakota and South Dakota; 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 in which its
ownership or lease of property or the conduct of its business
requires such qualification and the failure to so qualify might
permanently impair title to property material to its operations or
its right to enforce a material contract against others or expose
it to substantial liabilities; and, except as set forth in the
Pricing Disclosure Package and the Prospectus, the Company has all
material licenses and approvals required at the date hereof to
conduct its business, except where the failure to be so licensed or
qualified would not have a material adverse effect on
the
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condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole (a “Material Adverse
Effect”).
(i)
The Company has no subsidiaries which would be deemed significant
subsidiaries under Regulation S-X.
(j)
The Company has an authorized
capitalization as set forth in the Preliminary Prospectus and the
Prospectus; except as disclosed in the most recent Preliminary
Prospectus and the Prospectus, all the outstanding shares of
capital stock or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of
any third party.
(k) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the most recent Preliminary 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 disturbance or dispute or action,
order or decree of any court, arbitrator or governmental or
regulatory authority, otherwise than as set forth or contemplated
in the most recent Preliminary Prospectus and the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the most recent Preliminary Prospectus,
neither the Company nor any of its subsidiaries has 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 its subsidiaries taken as a whole, and
there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries taken as a
whole or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, business, financial position,
stockholder’s equity, or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the most recent Preliminary Prospectus and
Prospectus.
(l)
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 and 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 Articles of Incorporation, as amended, or by-laws of the
Company, or conflict with, or result in the breach or violation of
any of the terms or provisions of, or constitute a default under or
result in the creation or imposition of any lien, charge or
encumbrance (other than the lien of the Indenture) upon any
property or assets of the Company pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other 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 result in the violation of any law, statute, 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.
(m) The Company
has full right, power and authority to execute and deliver this
Agreement, the Bonds and the Indenture and to perform its
obligations hereunder and
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thereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery of this Agreement, the Bonds and the
Indenture and the consummation of the transactions contemplated
hereby and thereby has been duly and validly taken.
(n) 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.
(o) The
Indenture has been duly and validly authorized by the Company and
has been duly qualified under the Trust Indenture Act 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.
(p) This
Agreement has been duly authorized, executed and delivered by the
Company.
(q) Each of
the Indenture and the Bonds conform in all material respects to the
descriptions thereof contained in the Pricing Disclosure Package
and the Prospectus.
(r)
The statements set forth in the Pricing Disclosure Package and the
Prospectus under the captions “Supplemental Description of
the First Mortgage Bonds” and “Description of the First
Mortgage Bonds,” insofar as they purport to constitute a
summary of the terms of the Bonds, are accurate, complete and
fair.
(s) The
Minnesota Public Utilities Commission (the “MPUC”) has
issued its order approving the Company’s capital structure
which order authorizes the issuance of the Bonds and is final and
in full force and effect, and no other approval of, or any consent,
authorization or order of, or filing or registration with, any
regulatory public body, state or federal, or any court having
jurisdiction over the Company, is, or will be at the Closing Date
(as hereinafter defined), necessary in connection with the issuance
and sale of the Bonds pursuant to this Agreement or the execution,
delivery and performance of this Agreement and the Indenture, other
than such approvals that have been obtained under the Act and the
Trust Indenture Act and approvals that may be required under state
securities laws.
(t)
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) and title to all personal
property owned by it, subject only to taxes and assessments not yet
delinquent, the lien of the Indenture 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
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being contested or not
of record or for the satisfaction or discharge of which adequate
provision has been made by the Company; and any real property and
buildings held under lease by the Company are held by it under
valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the
Company.
(u) Other
than as set forth or contemplated in the most recent Preliminary
Prospectus and the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which would reasonably be expected to
have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(v) The
Company is not and, after giving effect to the offering and sale of
the Bonds and the application of the proceeds thereof as described
in the most recent Preliminary Prospectus and the Prospectus, will
not be 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 (the “Investment Company Act”).
(w) Except as set
forth in the most recent Preliminary Prospectus and the Prospectus,
the Company and its subsidiaries (i) are 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”),
(ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective business and (iii) are 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, individually or in the aggregate, have a
Material Adverse Effect.
(x)
Since the date as of which information is given in the most recent
Preliminary Prospectus through the Closing Date, and except as may
otherwise be disclosed in the most recent Preliminary Prospectus,
the Company has not (i) issued or granted any securities or
(ii) declared or paid any dividend on its capital stock, and
the Company has not (i) incurred any material liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business
or (ii) entered into any material transaction not in the
ordinary course of business.
(y) Each of
the Company and, with respect to clause (ii), its subsidiaries
(i) is not in violation of the Company’s Articles of
Incorporation, as amended, or by-laws, (ii) is not in default
in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is not in violation
of any law, ordinance, governmental rule, regulation or court
decree to which the Company or its property or assets may be
subject or has failed to obtain any license, permit, certificate,
franchise or other governmental
7
authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the case of clauses (ii) and (iii), for
defaults, events of default, violations and failures which do not
or would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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 of 99.046% of the principal amount
thereof, plus accrued interest, if any, from March 18, 2008 to
the Closing Date (as defined below) hereunder, the principal amount
of Bonds set forth opposite the name of such Underwriter in
Schedule I hereto.
The Company
acknowledges and agrees that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company with respect to the offering of the Bonds contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally,
neither any Representative nor any other Underwriter is advising
the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters
and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated
hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3. Delivery and
Payment. Delivery of and payment for the Bonds shall be
made at 9:30 a.m., New York City time, on
March 18, 2008, at the offices of Simpson Thacher &
Bartlett LLP, 425 Lexington Avenue, New York, New York 10017 (the
“Closing Location”), 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 in federal (same day) funds to the account
specified by the Company to Barclays Capital Inc., by causing The
Depository Trust Company (“DTC”) to credit the Bonds to
the account of Barclays Capital Inc. at DTC. 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 name of
Cede & Co., as nominee of DTC and deposited by or on
behalf of the Company with DTC or its designated custodian. 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 City
time, on the business day preceding the Closing Date. The
documents to be delivered on the Closing Date on behalf of the
parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Bonds and any additional documents requested
by the Underwriters, will be delivered at the Closing Location, and
the Bonds will be delivered at the office of DTC or its designated
custodian, all at the Closing Date. A meeting will be held
at
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the Closing
Location at 4:00 p.m., New York City time, on the New York
Business Day next preceding the Closing Date, at which meeting the
final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 3, “New
York Business Day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
4. Agreements of the
Company. The Company agrees with the several Underwriters
that:
(a) The Company will cause the
Prospectus, in a form approved by the Representatives, to be filed
pursuant to Rule 424(b) under the Act and will notify the
Representatives promptly of such filing. The Company will
prepare the Final Term Sheet, containing solely a description of
the terms of the Bonds and of the offering, in the form attached as
Schedule III hereto, will file such Final Term Sheet pursuant to
Rule 433(d) 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 (whether physically or through compliance
with Rule 172 under the Act or any similar rule), the Company
will promptly advise the Representatives (i) when any
amendment to the Registration Statement has been filed or 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 and shall furnish the
Representatives with copies thereof, (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, (iv) of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, (v) of the suspension of the qualification of the
Bonds for offering or sale in any jurisdiction, (vi) of the
initiation or threatening of any proceeding or examination for any
such purpose, and (vii) of any request by the Commission for
the amending or supplementing of the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or for additional information. During the period
for which a prospectus relating to the Bonds is required to be
delivered under the Act (whether physically or through compliance
with Rule 172 under the Act or any similar rule), the Company
will not file (i) any amendment to the Registration Statement
or supplement to the Prospectus (excluding documents deemed to be
incorporated by reference into the Prospectus) unless the Company
has furnished to the Representatives a copy for your review prior
to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object or
(ii) any document that would be deemed to be
incorporated by reference into the Prospectus without delivering to
the Representatives a copy of the document proposed to be so filed,
such delivery to be made at least 24 hours prior to such filing,
and the Company will consult with the Representatives as to any
comments which the Representatives make in a timely manner with
respect to such document. During the period for which a
prospectus relating to the Bonds is required to be delivered under
the Act (whether physically or through compliance with
Rule 172 under the Act or any similar rule), the Company will
promptly file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Bonds. In the event of the
issuance of any stop order or of any order preventing or
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suspending the use of
any Preliminary Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, the Company will promptly use its best efforts
to obtain the withdrawal of such order. In the event of the
Company’s receipt of a notice objecting to the use of the
form of the Registration Statement or any post-effective amendment
thereto, the Company will promptly take such steps including,
without limitation, amending the Registration Statement or filing a
new registration statement, at its own expense, as may be necessary
to permit offers and sales of the Bonds by the Underwriters (and
references herein to the “Registration Statement” shall
include any such amendment or new registration
statement).
(b) If, at any time when a
prospectus relating to the Bonds is required to be delivered under
the Act (whether physically or through compliance with
Rule 172 under the Act or any similar rule), 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 and furnish to the
Underwriters a reasonable number of copies thereof, 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 filed pursuant to Rule 424(b) 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 in 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 deliver to the
Representatives conformed copies of the Registration Statement, the
Preliminary Prospectus, the Prospectus and the Issuer Free Writing
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 (whether physically or through
compliance with Rule 172 under the Act or any similar rule),
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) Other than the Final Term Sheet
prepared and filed pursuant to Section 4(a) hereof,
without the prior written consent of the Representatives, the
Company has not made and will not make any offer relating to the
Bonds that would constitute a “free writing prospectus”
as defined in Rule 405 under the Act.
(f) The Company will promptly
file all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act and will
retain as and to the extent required by Rule 433 under the Act
all Issuer Free Writing Prospectuses not required to be
filed
10
with the Commission
pursuant to the rules and regulations under the Act. If
at any time after the date hereof any events shall have occurred as
a result of which any Issuer Free Writing Prospectus, as then
amended or supplemented, would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or
the Prospectus or would include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement any Issuer Free Writing
Prospectus, the Company will notify the Representatives and, upon
their request, file such document and prepare and furnish without
charge to each Underwriter as many copies as the Representatives
may from time to time reasonably request of an amended or
supplemented Issuer Free Writing Prospectus that will correct such
conflict, statement or omission or effect such
compliance.
(g) 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 in the United States 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.
(h) So long as the Bonds are
outstanding, the Company will furnish (or cause to be furnished) to
each of the Representatives, upon request, copies all reports
and financial statements filed with the Commission or any national
securities exchange.
(i) 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 long-term debt securities of the Company (except
under prior contractual commitments which have been disclosed to
you), without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
(j) The Company will obtain
or make prior to the issuance of the Bonds all regulatory and
governmental approvals, consents, authorizations, orders, filings
and registrations necessary for the issuance of the Bonds,
including, without limitation, any required approvals, consents,
authorizations, orders, filings and registrations of the MPUC
pertaining to the capital structure of the Company.
(k) In connection with the offering
of the Bonds, until the Underwriters shall have notified the
Company and the other Underwriters of the completion of the sale of
the Bonds, the Company will not, and will use its best efforts to
cause its controlled affiliates not to, either alone or with one or
more other persons (i) bid for or purchase for any account in
which it or any such affiliate has a beneficial interest any Bonds
or attempt to induce any person to purchase any Bonds or
(ii) make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of,
the Bonds.
(l) The Company will not
take, directly or indirectly, any action which is designed to
stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or
11
result in stabilization
or manipulation, of the price of any security of the Company in
connection with the offering of the Bonds.
5. Agreements
of the Underwriters. Each Underwriter hereby represents
and agrees that:
(a) it has not and will not use,
authorize use of, refer to, or participate in the planning for use
of, any Issuer Free Writing Prospectus or any “free writing
prospectus,” as defined in Rule 405 under the Act (which
term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into
the Registration Statement and any press release issued by the
Company) required to be filed by the Company with the Commission or
retained by the Company pursuant to Rule 433 under the Act,
other than (i) a free writing prospectus that contains no
“issuer information” (as defined in
Rule 433(h)(2) under the Act) that was not included
(including through incorporation by reference) in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) the Final Term Sheet or (iii) any free writing
prospectus prepared by such Underwriter and approved by the Company
in advance in writing; and
(b) it will, pursuant to reasonable
procedures developed in good faith, retain, as and to the extent
required under Rule 433 under the Securities Act, copies of
each free writing prospectus used or referred to by it, in
accordance with Rule 433.
6.
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
preparation, printing, filing and distribution of the Registration
Statement (including all exhibits thereto), any Preliminary
Prospectus, the Prospectus (including all documents incorporated by
reference therein), any Issuer Free Writing Prospectus 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, all costs and expenses of the printing
and distribution of all documents in connection with this
underwriting, the fees and
expenses of the Trustee and any paying agent (including related
fees and expenses of any counsel to such parties) and all expenses
and application fees incurred in connection with any filing
with, and clearance of any offering by, the Financial Industry
Regulatory Authority. Except as provided in this
Section 6 and Sections 9 and 10 hereof, 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.
7. 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
representations 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 the Company’s officers on and as of the
Closing Date made in any certificates given pursuant to the
provisions
12
hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under
the Act 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; all filings
(including, without limitation, the Final Term Sheet) required by
Rule 433 under the Act shall have been made, and no such
filings shall have been made without the consent of the
Representatives; no stop order suspending the effectiveness of the
Registration Statement or any part thereof or preventing or
suspending the use of the Prospectus or any Issuer Free Writing
Prospectus 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 Michael C.
Connelly, Vice President and General Counsel of the Company,
substantially in the form included as Exhibit A, and Jones
Day, Chicago, Illinois, counsel for the Company, substantially in
the form included as Exhibit B.
(c) The Representatives shall have
received from Si
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