As filed with the Securities and Exchange Commission on August 24, 2012
Registration No. 333 -         
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
 
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
Xcel Energy Inc.
(Exact name of registrant as specified in its charter)
 
MINNESOTA
 
41-0448030
(State or other jurisdiction of incorporation or organization)
 
(I.R.S. Employer Identification No.)
 
414 Nicollet Mall
Minneapolis, Minnesota  55401
(612) 330-5500
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
 
BENJAMIN G. S. FOWKE III
 
TERESA S. MADDEN
Chairman of the Board, President and Chief Executive Officer
 
Senior Vice President and Chief Financial Officer
Xcel Energy Inc.
 
Xcel Energy Inc.
414 Nicollet Mall
 
414 Nicollet Mall
Minneapolis, Minnesota 55401
 
Minneapolis, Minnesota 55401
(612) 330-5500
 
(612) 330-5500
(Names, address, including zip code, and telephone number, including area code, of agent for service)
________________________
 
Copies to:
SCOTT M. WILENSKY
 
ROBERT J. JOSEPH
Senior Vice President and General Counsel
 
Jones Day
Xcel Energy Inc.
 
77 West Wacker
414 Nicollet Mall
 
Chicago, Illinois  60601
Minneapolis, Minnesota 55401
 
(312) 782-3939
(612) 330-5500
   
________________________
 
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
________________________
 
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
  Large accelerated filer x   Accelerated filer o
  Non-accelerated filer  o (Do not check if smaller reporting company)          Smaller Reporting company o
 
 
 
 
 
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities
to be Registered
Amount to be Registered /
Proposed Maximum Offering Price Per Unit /
Proposed Maximum Aggregate Offering Price /
Amount of Registration Fee /
Senior Debt Securities, Subordinated Debt Securities, Junior Subordinated Debt Securities, Common Stock  (par value $2.50 per share), Preferred Stock (par value $100.00 per share), Depositary Shares, Warrants, Rights, Purchase Contracts and Units
(1)
   
   
(1)
An indeterminate principal amount or number of senior debt securities, subordinated debt securities, junior subordinated debt securities, common stock, preferred stock, depositary shares, warrants, rights, purchase contracts and units are being registered as may, from time to time, be offered at indeterminate prices. In accordance with Rules 456(b) and 457(r), the registrant is deferring payment of the registration fee for these securities.
 
 
 
 
 
PROSPECTUS
IMAGE
Xcel Energy Inc.
 
414 Nicollet Mall
Minneapolis, Minnesota  55401
(612) 330-5500
 
Senior Debt Securities
Subordinated Debt Securities
Junior Subordinated Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
Rights
Purchase Contracts
Units
____________________
 
We may offer and sell from time to time, in one or more offerings, together or separately, any combination of the securities described in this prospectus. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this prospectus that contains specific information about the offering and the specific terms of the securities offered.  This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
 
Our common stock trades on the New York Stock Exchange under the symbol “XEL.”
 
You should carefully consider the risk factors set forth in the applicable prospectus supplement and certain of our filings with the Securities and Exchange Commission before making any decision to invest in any of the securities described in this prospectus.
____________________
 
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus.  Any representation to the contrary is a criminal offense.
 
The date of this prospectus is August 24, 2012.
 
 
 
 
 
This document is called a “prospectus,” and it provides you with a general description of securities we may offer. Each time we sell securities under this prospectus, we will provide a prospectus supplement containing specific information about the terms of the securities being offered. That prospectus supplement may include a discussion of any risk factors or other special considerations that apply to those securities. The prospectus supplement may also add, update or change the information in this prospectus. If there is any inconsistency between the information in this prospectus and in a prospectus supplement, you should rely on the information in that prospectus supplement. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
 
Xcel Energy Inc., a Minnesota corporation, also referred to in this document as the Company, has filed a registration statement with the Securities and Exchange Commission, or the SEC, using a shelf registration process. Under this shelf process, we may offer and sell any combination of the securities described in this prospectus, in one or more offerings.
 
Our SEC registration statement containing this prospectus, including exhibits, provides additional information about us and the securities offered under this prospectus. The registration statement can be read at the SEC’s web site or at the SEC’s offices. The SEC’s web site and street addresses are provided under the heading “Where You Can Find More Information.”
 
You should rely only on the information provided in this prospectus and in the related prospectus supplement, including any information incorporated by reference. No one is authorized to provide you with information different from that which is contained, or deemed to be contained, in the prospectus and related prospectus supplement. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or the documents incorporated by reference is accurate as of any date other than the date on the front of those documents.
 
Unless otherwise specified or unless the context requires otherwise, all references in this prospectus to “Xcel Energy,” “we,” “us,” “our,” and “the Company” or similar terms refer to Xcel Energy Inc.
 
 
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WHERE YOU CAN FIND MORE INFORMATION
 
We file annual, quarterly and special reports, proxy statements and other information with the SEC.  Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov.  You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549.  Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
 
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents.  The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information.  We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) from the date of this prospectus until we sell all of the securities:
 
 
·
Our Annual Report on Form 10-K for the year ended December 31, 2011;
 
 
·
Our Quarterly Reports on Form 10-Q for the periods ended March 31, 2012 and June 30, 2012;
 
 
·
Our Current Reports on Form 8-K filed with the SEC on January 12, 2012, February 23, 2012, March 2, 2012, March 5, 2012, April 3, 2012, April 13, 2012, May 18, 2012, June 4, 2012, June 8, 2012, June 21, 2012, June 22, 2012, June 29, 2012, July 13, 2012, and August 2, 2012; and
 
 
·
The description of our common stock contained in our Form 8-K filed with the SEC on March 13, 2002, our Form 8-K filed with the SEC on August 14, 2008, which describes certain amendments to our Restated Bylaws (“Bylaws”), our Form 8-K filed with the SEC on December 12, 2008 describing the termination of the Stockholder Protection Rights Agreement dated as of December 13, 2000, between us and The Bank of New York Mellon, as successor rights agent, and our Form 8-K filed with the SEC on May 18, 2012, which described amendments to the voting rights of our common stock holders to eliminate cumulative voting.
 
We will provide to you a copy of any or all of the above filings that have been incorporated by reference into this prospectus, excluding exhibits to those filings, upon your request, at no cost. Any request may be made by writing or calling us at the following address or telephone number:
 
Corporate Secretary
Xcel Energy Inc.
414 Nicollet Mall
Minneapolis, MN 55401
(612) 330-5500
 
 
ii
 
 
XCEL ENERGY INC.
 
We are a public utility holding company with four utility subsidiaries: (i) Northern States Power Company, a Minnesota corporation, which provides electric utility service to approximately 1.4 million customers and natural gas utility service to approximately 0.5 million customers in Minnesota, North Dakota and South Dakota; (ii) Northern States Power Company, a Wisconsin corporation, which provides electric utility service to approximately 251,000 customers and natural gas utility service to approximately 107,000 customers in northwestern Wisconsin and the western portion of the Upper Peninsula of Michigan; (iii) Public Service Company of Colorado, a Colorado corporation, which provides electric utility service to approximately 1.4 million customers and natural gas utility service to approximately 1.3 million customers in Colorado; and (iv) Southwestern Public Service Company, a New Mexico corporation, which provides electric utility service to approximately 376,000 retail customers in Texas and New Mexico.
 
We were incorporated in 1909 under the laws of Minnesota.  Our principal executive offices are located at 414 Nicollet Mall, Minneapolis, Minnesota 55401, and our telephone number at that location is (612) 330-5500.  Our web site is http:// www.xcelenergy.com .  Except for documents incorporated by reference into this prospectus, no information contained in, or that can be accessed through, our web site is to be considered as part of this prospectus.
 
USE OF PROCEEDS
 
Unless otherwise set forth in a prospectus supplement, we intend to add the net proceeds from the sale of the securities described in this prospectus to our general funds and use those proceeds for general corporate purposes, which may include the funding of our operating units and subsidiaries, the repayment of indebtedness, working capital, capital expenditures and acquisitions. The specific allocation of the proceeds of a particular series of the securities will be described in the prospectus supplement.
 
RATIO OF CONSOLIDATED EARNINGS TO CONSOLIDATED FIXED CHARGES
 
    Six Months
Ended
June 30,
    Year Ended December 31,  
    2012
(Unaudited)
   
2011
   
2010
   
2009
   
2008
     
2007
 
Ratio of Earnings to Fixed Charges
  2.5     2.8     2.7     2.5     2.5     2.2  

For purposes of computing the ratio of earnings to fixed charges, (1) earnings consist of pre-tax income from continuing operations before adjustment for income or loss from equity investees plus fixed charges and distributed income of equity investees; and (2) fixed charges consist of interest on long-term debt, other interest charges, the interest component on leases and amortization of debt discount, premium and expense.
 
 
1
 
 
DESCRIPTION OF SENIOR DEBT SECURITIES
 
The description below contains summaries of selected provisions of the indenture, including supplemental indentures, under which the senior debt securities (referred to herein as “senior debt securities”) may be issued.  These summaries are not complete.  The indenture and the form of the supplemental indenture applicable to the senior debt securities have been filed as exhibits to the registration statement.  You should read them for provisions that may be important to you.  In the summaries below, we have included references to section numbers of the indenture so that you can easily locate these provisions.
 
We are not required to issue future issues of senior indebtedness under the senior indenture described in this prospectus.  We are free to use other indentures or documentation, containing provisions different from those described in this prospectus, in connection with future issues of other senior indebtedness not under this registration statement.
 
The senior debt securities will be represented either by global senior debt securities registered in the name of The Depository Trust Company (“DTC”), as depository (“Depository”), or its nominee, or by securities in certificated form issued to the registered owners, as described in the applicable prospectus supplement.  See the information under the heading “Book-Entry System” in this prospectus.
 
General
 
The senior debt securities will be issued in one or more new series under an indenture dated as of December 1, 2000 between us and Wells Fargo Bank, National Association, as trustee (the “Senior Debt Trustee”).  This indenture, as previously supplemented by supplemental indentures and as may be supplemented by a new supplemental indenture for additional series of debt securities, is referred to in this prospectus as the “Senior Indenture.”  As of June 30, 2012, there were four series of senior debt securities in an aggregate principal amount of $1.4 billion outstanding under the Senior Indenture.
 
The holders of the outstanding senior debt securities do not, and, unless the supplemental indenture that describes a particular series of senior debt securities provides otherwise with respect to that series, the holders of any senior debt securities offered by this prospectus will not, have the right to require us to repurchase the senior debt securities if we become involved in a highly leveraged or change in control transaction.  The Senior Indenture does not have any provision that is designed specifically in response to highly leveraged or change in control transactions.
 
The senior debt securities will be our unsecured and unsubordinated obligations.  The senior debt securities will rank on a parity in right of payment with all of our existing and future unsecured and unsubordinated indebtedness and will rank senior to any of our subordinated indebtedness.  As of June 30, 2012, we have one series of junior subordinated debt in the aggregate principal amount of $400 million outstanding and our aggregate unsecured and unsubordinated indebtedness was approximately $1.4 billion.  The senior debt securities will be subordinated to any of our secured indebtedness, as to the assets securing such indebtedness.  As of June 30, 2012, we had no secured indebtedness.
 
In addition, the senior debt securities will be effectively subordinated to all existing and future liabilities of our subsidiaries.  We are a holding company and conduct business through our various subsidiaries.  As a result, our cash flow and consequent ability to meet our debt obligations primarily depend on the earnings of our subsidiaries, and on dividends and other payments from our subsidiaries.  Under certain circumstances, contractual and legal restrictions, as well as the financial condition and operating requirements of our subsidiaries, could limit our ability to obtain cash from our subsidiaries for the purpose of meeting debt service obligations, including the payment of principal and interest on the senior debt securities.  Any rights to receive assets of any subsidiary upon its liquidation or reorganization and the consequent right of the holders of the senior debt securities to participate in those assets will be subject to the claims of that subsidiary’s creditors, including trade creditors, except to the extent that we are recognized as a creditor of that subsidiary, in which case our claims would still be subordinate to any security interests in the assets of that subsidiary.  As of June 30, 2012, our subsidiaries had approximately $18.9 billion of indebtedness and other liabilities outstanding.
 
 
The amount of securities that we may issue under the Senior Indenture is not limited. We are not required to issue all senior debt securities of one series at the same time and, unless we indicate otherwise in the applicable prospectus supplement, we may reopen a series for issuances of additional senior debt securities of that series without the consent of the holders of the senior debt securities of that series.
 
 
2
 
 
When we offer to sell a particular series of senior debt securities, we will describe the specific terms of that series in a prospectus supplement relating to that series, including the following terms:
 
 
·
the title, aggregate principal amount and offering price of that series of senior debt securities;
 
 
·
the interest rate or rates, or method of calculation of such rate or rates, on that series, and the date from which the interest will accrue;
 
 
·
the dates on which interest will be payable;
 
 
·
the record dates for payments of interest;
 
 
·
the date on which the senior debt securities of that series will mature;
 
 
·
any redemption terms;
 
 
·
the period or periods within which, the price or prices at which and the terms and conditions upon which the senior debt securities of that series may be repaid, in whole or in part, at the option of the holder thereof;
 
 
·
any changes to events of default or covenants; and
 
 
·
other specific terms applicable to the senior debt securities of that series.
 
Any special U.S. federal income tax considerations applicable to senior debt securities sold at an original issue discount and any special U.S. federal income tax or other considerations applicable to any senior debt securities which are denominated in currencies other than U.S. dollars will be described in the prospectus supplement relating to that series of senior debt securities.
 
Unless we indicate otherwise in the applicable prospectus supplement, the senior debt securities will be denominated in U.S. dollars in minimum denominations of $1,000 and integral multiples thereof.
 
Registration, Transfer and Exchange
 
Senior debt securities of any series may be exchanged for other senior debt securities of the same series of any authorized denominations and of a like aggregate principal amount, series and stated maturity and having the same terms and original issue date or dates.  (Section 2.6 of the Senior Indenture).
 
Unless we indicate otherwise in the applicable prospectus supplement, senior debt securities may be presented for registration of transfer (duly endorsed or accompanied by a duly executed written instrument of transfer), at the office of the Senior Debt Trustee maintained for that purpose with respect to any series of senior debt securities and referred to in the applicable prospectus supplement, without service charge and upon payment of any taxes and other governmental charges as described in the Senior Indenture.  Any transfer or exchange will be effected if the senior debt securities are duly endorsed by, or accompanied by a written instrument or instruments of transfer in a form satisfactory to the Company and the Senior Debt Trustee and duly executed by the holder of the senior debt security as described in the Senior Indenture.  (Section 2.6 of the Senior Indenture).
 
The Senior Debt Trustee will not be required to exchange or register a transfer of any senior debt securities of a series selected, called or being called for redemption except, in the case of any senior debt security to be redeemed in part, the portion thereof not to be so redeemed.  (Section 2.6 of the Senior Indenture).  See the information under the heading “Book-Entry System” in this prospectus.
 
 
3
 
 
Payment and Paying Agents
 
Principal, interest and premium, if any, on senior debt securities issued in the form of global senior debt securities will be paid in the manner described below under the heading “Book-Entry System.”  Unless we indicate otherwise in the applicable prospectus supplement, interest on senior debt securities that are in the form of certificated senior debt securities will be paid by check mailed to the holder at that person’s address as it appears in the register for the senior debt securities maintained by the Senior Debt Trustee; however, a holder of $10,000,000 or more senior debt securities having the same interest payment dates will be entitled to receive payments of interest by wire transfer to a bank within the continental United States if appropriate wire transfer instructions have been received by the Senior Debt Trustee on or prior to the applicable record date.  (Section 2.12 of the Senior Indenture).  Unless we indicate otherwise in the applicable prospectus supplement, the principal, interest at maturity and premium, if any, on senior debt securities in the form of certificated senior debt securities will be payable in immediately available funds at the office of the Senior Debt Trustee.  (Section 2.12 of the Senior Indenture).
 
All monies paid by us to a paying agent for the payment of principal, interest or premium, if any, on any senior debt security which remain unclaimed at the end of two years after that principal, interest or premium has become due and payable will be repaid to us and the holder of that senior debt security will thereafter look only to us for payment of that principal, interest or premium.  (Section 4.4 of the Senior Indenture).
 
Events of Default and Remedies
 
The following constitute events of default under the Senior Indenture:
 
 
·
default in the payment of principal and premium, if any, on any security issued under the Senior Indenture when due and payable and continuance of that default for 5 days;
 
 
·
default in the payment of interest on any security issued under the Senior Indenture when due and continuance of that default for 30 days;
 
 
·
default in the performance or breach of our other covenants or warranties in the securities or in the Senior Indenture and the continuation of that default or breach for 90 days after written notice to us as provided in the Senior Indenture; and
 
 
·
specified events of bankruptcy, insolvency or reorganization of our company.
 
(Section 7.1 of the Senior Indenture).
 
Acceleration of Maturity .  If an event of default occurs and is continuing, either the Senior Debt Trustee or the holders of a majority in principal amount of the outstanding senior debt securities may declare the principal amount of all senior debt securities to be due and payable immediately.  At any time after an acceleration of the securities has been declared, but before a judgment or decree of the immediate payment of the principal amount of the securities has been obtained, if we pay or deposit with the Senior Debt Trustee a sum sufficient to pay all matured installments of interest and the principal and any premium which has become due otherwise than by acceleration and all defaults have been cured or waived, then that payment or deposit will cause an automatic rescission and annulment of the acceleration of the securities.  (Section 7.1 of the Senior Indenture).
 
Indemnification of Senior Debt Trustee .  The Senior Debt Trustee generally will be under no obligation to exercise any of its rights or powers under the Senior Indenture at the request or direction of any of the holders unless such holders have offered reasonable security or indemnity to the Senior Debt Trustee.  (Section 8.2 of the Senior Indenture).
 
Right to Direct Proceedings .  The holders of a majority in principal amount of the outstanding securities generally will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Senior Debt Trustee, or of exercising any trust or power conferred on the Senior Debt Trustee, relating to the securities.  However, the Senior Debt Trustee may refuse to follow any direction that conflicts with law or the Senior Indenture or would expose the Senior Debt Trustee to personal liability or be unduly prejudicial to holders not joining in such proceeding.  (Section 7.7 of the Senior Indenture).
 
 
4
 
 
Limitation on Rights to Institute Proceedings .   No holder of the senior debt securities of a series will have any right to pursue a remedy under the Senior Indenture, unless:
 
 
·
the holder has previously given the Senior Debt Trustee written notice of a continuing event of default on the series;
 
 
·
the holders of at least a majority in principal amount of the outstanding securities affected by such event of default have made written request, and the holder or holders have offered indemnity satisfactory to the Senior Debt Trustee to pursue the remedy; and
 
 
·
the Senior Debt Trustee has failed to comply with the request within 60 days after the request and offer.
 
(Section 7.4 of the Senior Indenture).
 
No Impairment of Right to Receive Payment .   Notwithstanding any other provision of the Senior Indenture, the holder of any senior debt security will have the absolute and unconditional right to receive payment of the principal, premium, if any, and interest on that senior debt security when due, and to institute suit for enforcement of that payment.  This right may not be impaired without the consent of the holder.  (Section 7.4 of the Senior Indenture).
 
Notice of Default .   The Senior Debt Trustee is required to give the holders notice of the occurrence of a default within 90 days of the default, unless the default is cured or waived.  Except in the case of a payment default on the senior debt securities, or a default in the payment of any sinking or purchase fund installments, the Senior Debt Trustee may withhold the notice if its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers determines in good faith that it is in the interest of holders to do so.  (Section 7.8 of the Senior Indenture).  We are required to deliver to the Senior Debt Trustee each year a certificate as to whether or not we are in compliance with the conditions and covenants under the Senior Indenture.  (Section 5.5 of the Senior Indenture).
 
Modification
 
Unless we indicate otherwise in the applicable prospectus supplement, we and the Senior Debt Trustee may modify and amend the Senior Indenture from time to time.
 
We will not need the consent of the holders for the following types of amendments:
 
 
·
curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision or supplying an omission arising under the Senior Indenture;
 
 
·
changing or eliminating any of the provisions of the Senior Indenture, provided that any such change or elimination is to become effective only when:
 
 
·
there is no outstanding security created prior to the execution of the supplemental indenture that is entitled to receive the benefit of this provision; or
 
 
·
this change or elimination is applicable only to securities issued after the date this change or elimination becomes effective;
 
 
·
establishing the form of the securities or establishing or reflecting any terms of any security as provided in the Senior Indenture;
 
 
5
 
 
 
·
evidencing our successor corporation and the assumption by our successor of our covenants in the Senior Indenture and in the securities;
 
 
·
granting to or conferring upon the Senior Debt Trustee any additional rights, remedies, powers or authority for the benefit of the holders of the securities;
 
 
·
permitting the Senior Debt Trustee to comply with any duties imposed upon it by law;
 
 
·
specifying further the duties and responsibilities of the Senior Debt Trustee, any authenticating agent and any paying agent and defining further the relationships among the Senior Debt Trustee, authenticating agent and paying agent;
 
 
·
adding to our covenants for the benefit of the holders of the securities or surrendering a right given to us in the Senior Indenture;
 
 
·
adding security for the securities; or
 
 
·
making any other change that is not prejudicial to the Senior Debt Trustee or the holders of the securities.
 
(Section 12.1 of the Senior Indenture).
 
We will need the consent of the holders of each outstanding security affected by a proposed amendment if the amendment would cause any of the following to occur:
 
 
·
a change in the maturity date, reduction of the interest rate, or extension of the time of payment of interest, of any security;
 
 
·
a reduction in the principal amount of any security or the premium payable on any security;
 
 
·
a change in the currency of any payment of principal, premium or interest on any security;
 
 
·
a change in date on which any security may be redeemed or repaid at the option of the holder;
 
 
·
an impairment of the right of a holder to institute suit for the enforcement of any payment relating to any security;
 
 
·
a reduction in the percentage of outstanding securities necessary to consent to the modification or amendment of the Senior Indenture; or
 
 
·
a modification of these requirements or a reduction to less than a majority of the percentage of outstanding securities necessary to waive events of default.
 
(Section 12.2 of the Senior Indenture).
 
Amendments other than those described in the above two paragraphs will require the approval of a majority in principal amount of the outstanding securities.
 
Defeasance and Discharge
 
We may be discharged from all obligations relating to the senior debt securities and the Senior Indenture (except for specified obligations such as obligations to register the transfer or exchange of securities, replace stolen, lost or mutilated securities and maintain paying agencies) if we irrevocably deposit with the Senior Debt Trustee, in trust for the benefit of holders of securities, money or U.S. government obligations (or any combination thereof) sufficient to make all payments of principal, premium and interest on the securities on the dates those payments are due.  To discharge these obligations, we must deliver to the Senior Debt Trustee an opinion of counsel that the holders of the securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or discharge of the Senior Indenture.  Upon any discharge of our obligations as described above, we will be deemed to have paid and discharged our entire indebtedness represented by the senior debt securities and our obligations under the senior debt securities.  (Section 4.1 of the Senior Indenture).
 
 
6
 
 
Consolidation, Merger and Sale of Assets; No Financial Covenants
 
We will not consolidate with or merge into any other corporation or sell, or otherwise dispose all or substantially all of our assets unless the successor or transferee corporation assumes by supplemental indenture our obligations to pay the principal, interest and premium on all the securities and our obligation to perform every covenant of the Senior Indenture that we are to perform or observe, and we or the successor or transferee corporation, as applicable, are not immediately following such consolidation or merger, or sale, or disposition in default in the performance of any such covenant.  Upon any consolidation or merger, or any sale, transfer or other disposition of all or substantially all of our assets, the successor or transferee corporation will succeed to, and be substituted for, and may exercise all of our rights and powers under the Senior Indenture with the same effect as if the successor corporation had been named as us in the Senior Indenture and we will be released from all obligations under the Senior Indenture.  Regardless of whether a sale or transfer of assets might otherwise be considered a sale of all or substantially all of our assets, the Senior Indenture also specifically permits any sale, transfer or conveyance of our non-utility subsidiaries if, following such sale or transfer, the securities are rated by Standard & Poor’s Ratings Group and Moody’s Investors Service, Inc. at least as high as the ratings accorded the securities immediately prior to the sale, transfer or disposition.  (Sections 11.1 and 11.2 of the Senior Indenture).
 
The Senior Indenture does not contain any financial or other similar restrictive covenants.
 
Resignation or Removal of Senior Debt Trustee
 
The Senior Debt Trustee may resign at any time by notifying us in writing and specifying the day that the resignation is to take effect.  The resignation will not take effect, however, until the later of the appointment of a successor trustee and the day the resignation is to take effect.  (Section 8.10 of the Senior Indenture).
 
The holders of a majority in principal amount of the outstanding securities may remove the Senior Debt Trustee at any time.  In addition, so long as no event of default or event which, with the giving of notice or lapse of time or both, would become an event of default has occurred and is continuing, we may remove the Senior Debt Trustee upon notice to the holder of each security outstanding and written notice to the Senior Debt Trustee.  (Section 8.10 of the Senior Indenture).
 
Governing Law
 
The Senior Indenture and the senior debt securities will be governed by, and will be construed in accordance with, the laws of the State of Minnesota.
 
Concerning the Senior Debt Trustee
 
Wells Fargo Bank, National Association is the Senior Debt Trustee.  We maintain banking relationships with the Senior Debt Trustee in the ordinary course of business.  The Senior Debt Trustee also acts as trustee for our junior subordinated debt securities and certain debt securities of our subsidiaries.
 
 
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DESCRIPTION OF SUBORDINATED DEBT SECURITIES
 
We may issue subordinated debt securities (other than the junior subordinated debt securities (as defined below under “Description of Junior Subordinated Debt Securities” in this prospectus)), in one or more series, under one or more subordinated indentures. The description below contains summaries of selected provisions of the indenture under which the subordinated debt securities may be issued.  These summaries are not complete. The form of subordinated indenture and the form of the supplemental indenture applicable to the subordinated debt securities have been filed as exhibits to the registration statement.  You should read them for provisions that may be important to you.  In the summaries below, we have included references to section numbers of the subordinated indenture so that you can easily locate these provisions.
 
We are not required to issue future issues of subordinated indebtedness under the subordinated indenture described in this prospectus.  We are free to use other indentures or documentation, containing provisions different from those described in this prospectus, in connection with future issues of other subordinated indebtedness not under this registration statement.
 
The subordinated debt securities will be represented either by global subordinated debt securities registered in the name of the Depository or its nominee, or by securities in certificated form issued to the registered owners, as set forth in the applicable prospectus supplement.  See the information under the heading “Book-Entry System” in this prospectus.
 
General
 
The subordinated debt securities will be issued in one or more new series under a subordinated indenture to be entered into between us and a trustee to be named therein, as trustee (the “Subordinated Trustee”).  This subordinated indenture, as it may be supplemented by a supplemental indenture for each series of subordinated debt securities, is referred to in this prospectus as the “Subordinated Indenture.”  As of June 30, 2012, we have no subordinated debt securities outstanding under the Subordinated Indenture.
 
The subordinated debt securities will be our unsecured obligations and will rank senior to any of our junior subordinated indebtedness and will rank junior in right of payment to our Senior Indebtedness, as described under the caption “—Subordination”. As of June 30, 2012, our outstanding Senior Indebtedness (as defined below) was approximately $1.4 billion.
 
In addition, the subordinated debt securities will be effectively subordinated to all existing and future liabilities of our subsidiaries, including trade creditors, debtholders, secured creditors, taxing authorities, guarantee holders and any preferred stockholders.  We are a holding company and conduct business through our various subsidiaries.  As a result, our cash flow and consequent ability to meet our debt obligations primarily depend on the earnings of our subsidiaries, and on dividends and other payments from our subsidiaries.  Under certain circumstances, contractual and legal restrictions, as well as the financial condition and operating requirements of our subsidiaries, could limit our ability to obtain cash from our subsidiaries for the purpose of meeting debt service obligations, including the payment of principal and interest on the subordinated debt securities.  Any rights to receive assets of any subsidiary upon its liquidation or reorganization and the consequent right of the holders of the subordinated debt securities to participate in those assets will be subject to the claims of that subsidiary’s creditors, including trade creditors, except to the extent that we are recognized as a creditor of that subsidiary, in which case our claims would still be subordinate to any security interests in the assets of that subsidiary.  As of June 30, 2012, our subsidiaries had approximately $18.9 billion of indebtedness and other liabilities outstanding.
 
Unless the supplemental indenture that describes a particular series of subordinated debt securities provides otherwise with respect to that series, the holders of any subordinated debt securities offered by this prospectus will not have the right to require us to repurchase the subordinated debt securities if we become involved in a highly leveraged or change in control transaction.  The Subordinated Indenture does not have any provision that is designed specifically in response to highly leveraged or change in control transactions.
 
The amount of subordinated debt securities that we may issue under the Subordinated Indenture is not limited.  We are not required to issue all subordinated debt securities of one series at the same time and, unless we indicate otherwise in the applicable prospectus supplement, we may reopen a series for issuances of additional subordinated debt securities of that series without the consent of the holders of the subordinated debt securities of that series.
 
 
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When we offer to sell a particular series of subordinated debt securities, we will describe the specific terms of that series in a prospectus supplement relating to that series, including the following terms:
 
 
·
the title, aggregate principal amount and offering price of that series of subordinated debt securities;
 
 
·
the interest rate or rates, or method of calculation of such rate or rates, on that series, and the date from which the interest will accrue;
 
 
·
the dates on which interest will be payable;
 
 
·
any rights that would allow us to defer or extend an interest payment date;
 
 
·
the record dates for payments of interest;
 
 
·
the date on which the subordinated debt securities of that series will mature;
 
 
·
any redemption terms;
 
 
·
the period or periods within which, the price or prices at which and the terms and conditions upon which the subordinated debt securities of that series may be repaid, in whole or in part, at the option of the holder thereof;
 
 
·
any changes to events of default or covenants;
 
 
·
any changes to subordination provisions; and
 
 
·
other specific terms applicable to the subordinated debt securities of that series.
 
Any special U.S. federal income tax considerations applicable to subordinated debt securities sold at an original issue discount and any special U.S. federal income tax or other considerations applicable to any subordinated debt securities which are denominated in currencies other than U.S. dollars will be described in the prospectus supplement relating to that series of subordinated debt securities.
 
Unless we indicate otherwise in the applicable prospectus supplement, the subordinated debt securities will be denominated in U.S. dollars in minimum denominations of $1,000 and integral multiples thereof.
 
Subordination
 
Each series of subordinated debt securities will be subordinate and junior in right of payment, to the extent set forth in the Subordinated Indenture, to all Senior Indebtedness (as defined below).  If:
 
 
·
we make a payment or distribution of any of our assets to creditors upon our dissolution, winding-up, liquidation or reorganization, whether in bankruptcy, insolvency or otherwise;
 
 
·
a default in the payment of principal or interest on any Senior Indebtedness has occurred and is continuing; or
 
 
·
the maturity of any Senior Indebtedness has been accelerated because of a default on that Senior Indebtedness,
 
then the holders of Senior Indebtedness generally will have the right to receive payment, in the case of the first instance above, of all amounts due or to become due upon that Senior Indebtedness, and, in the case of the second and third instances, of all amounts due on that Senior Indebtedness, or we will make provision for those payments, before the holders of any subordinated debt securities have the right to receive any payments of principal or interest on their securities.  (Sections 14.1 and 14.9 of the Subordinated Indenture).
 
 
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Unless we indicate otherwise in the applicable prospectus supplement, “Senior Indebtedness” includes the senior debt securities and means, with respect to any series of subordinated debt securities, the principal, premium, interest and any other payment in respect of any of the following, whether outstanding on the date of execution of the Subordinated Indenture or thereafter incurred, other than obligations expressly on a parity with the subordinated debt securities or junior to the subordinated debt securities:
 
 
·
all of our current and future indebtedness for borrowed or purchase money whether or not evidenced by bonds, debentures, notes or other similar written instruments;
 
 
·
our obligations under synthetic leases, finance leases and capitalized leases;
 
 
·
our obligations for reimbursement under letters of credit, banker’s acceptances, security purchase facilities or similar facilities issued for our account;
 
 
·
any of our other indebtedness or obligations with respect to derivative contracts, including commodity contracts, interest rate, commodity and currency swap agreements, forward contracts and other similar agreements or arrangements designed to protect against fluctuations in commodity prices, currency exchange or interest rates; and
 
 
·
all indebtedness of others of the kinds described in the preceding categories which we have assumed or guaranteed.
 
Senior Indebtedness will not include trade accounts payable, accrued liabilities arising in the ordinary course of business, indebtedness to our subsidiaries or any indebtedness which is by its terms junior to or on parity with the subordinated debt securities, including the junior subordinated indebtedness issued under the Junior Subordinated Indenture.  (Section 1.3 of the Subordinated Indenture.)
 
Senior Indebtedness will be entitled to the benefits of the subordination provisions in the Subordinated Indenture irrespective of the amendment, modification or waiver of any term of the Senior Indebtedness.  We may not amend the Subordinated Indenture to change the subordination of any outstanding subordinated debt securities without the consent of each holder of subordinated debt securities that such amendment would adversely affect.  (Sections 12.2 and 14.7 of the Subordinated Indenture.)
 
The Subordinated Indenture does not limit the amount of subordinated debt securities that we may issue.
 
Registration, Transfer and Exchange
 
 Subordinated debt securities of any series may be exchanged for other subordinated debt securities of the same series of any authorized denominations and of a like aggregate principal amount, series and stated maturity and having the same terms and original issue date or dates.  (Section 2.6 of the Subordinated Indenture).
 
Unless we indicate otherwise in the applicable prospectus supplement, subordinated debt securities may be presented for registration of transfer (duly endorsed or accompanied by a duly executed written instrument of transfer), at the office of the Subordinated Debt Trustee maintained for that purpose with respect to any series of subordinated debt securities and referred to in the applicable prospectus supplement, without service charge and upon payment of any taxes and other governmental charges as described in the Subordinated Indenture.  Any transfer or exchange will be effected if the subordinated debt securities are duly endorsed by, or accompanied by a written instrument or instruments of transfer in a form satisfactory to the Company and the Subordinated Debt Trustee and duly executed by the holder of the subordinated debt security as described in the Subordinated Indenture.  (Section 2.6 of the Subordinated Indenture).
 
The Subordinated Debt Trustee will not be required to exchange or register a transfer of any subordinated debt securities of a series selected, called or being called for redemption except, in the case of any subordinated debt security to be redeemed in part, the portion thereof not to be so redeemed.  (Section 2.6 of the Subordinated Indenture).  See the information under the heading “Book-Entry System” in this prospectus.
 
 
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Payment and Paying Agents
 
Principal, interest and premium, if any, on subordinated debt securities issued in the form of global subordinated debt securities will be paid in the manner described below under the heading “Book-Entry System.”  Unless we indicate otherwise in the applicable prospectus supplement, interest on subordinated debt securities that are in the form of certificated subordinated debt securities will be paid by check mailed to the holder at that person’s address as it appears in the register for the subordinated debt securities maintained by the Subordinated Debt Trustee; however, a holder of $10,000,000 or more subordinated debt securities having the same interest payment dates will be entitled to receive payments of interest by wire transfer to a bank within the continental United States if appropriate wire transfer instructions have been received by the Subordinated Debt Trustee on or prior to the applicable record date.  (Section 2.12 of the Subordinated Indenture).  Unless we indicate otherwise in the applicable prospectus supplement, the principal, interest at maturity and premium, if any, on subordinated debt securities in the form of certificated subordinated debt securities will be payable in immediately available funds at the office of the Subordinated Debt Trustee.  (Section 2.12 of the Subordinated Indenture).
 
All monies paid by us to a paying agent for the payment of principal, interest or premium, if any, on any subordinated debt security which remain unclaimed at the end of two years after that principal, interest or premium has become due and payable will be repaid to us and the holder of that subordinated debt security will thereafter look only to us for payment of that principal, interest or premium.  (Section 4.4 of the Subordinated Indenture).
 
Events of Default and Remedies
 
Unless we provide otherwise in a prospectus supplement, the following will constitute events of default under the Subordinated Indenture with respect to the subordinated debt securities of any series:
 
 
·
default in the payment of principal and premium, if any, on any security of such series when due and payable and continuance of that default for 5 days;
 
 
·
default in the payment of interest on any security of such series when due and continuance of that default for 30 days (subject, if applicable, to the right to optionally defer interest payments);
 
 
·
default in the performance or breach of our other covenants or warranties in the securities of such series or in the Subordinated Indenture (other than a covenant or agreement that has been expressly included in the Subordinated Indenture for the benefit of one or more series of subordinated debt securities other than such series) and the continuation of that default or breach for 90 days after written notice to us as provided in the Subordinated Indenture; and
 
 
·
specified events of bankruptcy, insolvency or reorganization of our company.
 
(Section 7.1 of the Subordinated Indenture).
 
Acceleration of Maturity .  If an event of default occurs and is continuing with respect to a series of subordinated debt securities, either the Subordinated Debt Trustee or the holders of at least 25% in principal amount of the outstanding securities of that series may declare the principal amount of all securities of that series to be due and payable immediately.  At any time after an acceleration of a series of securities has been declared, but before a judgment or decree of the immediate payment of the principal amount of those securities has been obtained, if:
 
 
·
holders of a majority in aggregate principal amount of the securities of that series rescind in writing the acceleration; and
 
 
·
we pay or deposit with the Subordinated Debt Trustee a sum sufficient to pay all matured installments of interest with respect to that series of securities and the principal and any premium which has become due with respect to that series of securities otherwise than by acceleration and all defaults with respect to that series of securities have been cured or waived,
 
then that holders’ rescission and the payment or deposit will cause an automatic rescission and annulment of the acceleration of the securities of that series. (Section 7.1 of the Subordinated Indenture).
 
 
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Indemnification of Subordinated Debt Trustee .  The Subordinated Debt Trustee generally will be under no obligation to exercise any of its rights or powers under the Subordinated Indenture at the request or direction of any of the holders unless such holders have offered reasonable security or indemnity to the Subordinated Debt Trustee.  (Section 8.2 of the Subordinated Indenture).
 
Right to Direct Proceedings .  The holders of a majority in principal amount of the outstanding securities of a series generally will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Subordinated Debt Trustee, or of exercising any trust or power conferred on the Subordinated Debt Trustee, relating to the securities of that series.  Notwithstanding, the Subordinated Debt Trustee may refuse to follow any direction that conflicts with law or the Subordinated Indenture or would expose the Subordinated Debt Trustee to personal liability or be unduly prejudicial to holders not joining in such proceeding.  (Section 7.7 of the Subordinated Indenture).
 
Limitation on Rights to Institute Proceedings .  No holder of the subordinated debt securities of a series will have any right to pursue a remedy under the Subordinated Indenture, unless:
 
 
·
the holder has previously given the Subordinated Debt Trustee written notice of a continuing event of default on the series;
 
 
·
the holders of at least a majority in principal amount of the outstanding securities of all series affected by such event of default, considered as one class, have made written request, and the holder or holders have offered indemnity satisfactory to the Subordinated Debt Trustee to pursue the remedy; and
 
 
·
the Subordinated Debt Trustee has failed to comply with the request within 60 days after the request and offer.
 
(Section 7.4 of the Subordinated Indenture).
 
No Impairment of Right to Receive Payment .  Notwithstanding any other provision of the Subordinated Indenture, the holder of any subordinated debt security will have the absolute and unconditional right to receive payment of the principal, premium, if any, and interest on that subordinated debt security when due and payable, and to institute suit for enforcement of that payment.  This right may not be impaired without the consent of the holder.  (Section 7.4 of the Subordinated Indenture).
 
Notice of Default .  The Subordinated Debt Trustee is required to give the holders of a series of securities notice of the occurrence of a default within 90 days of the default with respect to that series, unless the default is cured or waived.  Except in the case of a payment default on the subordinated debt securities, or a default in the payment of any sinking or purchase fund installments, the Subordinated Debt Trustee may withhold the notice if its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers determines in good faith that it is in the interest of holders of the series of affected securities to do so.  (Section 7.8 of the Subordinated Indenture).  We are required to deliver to the Subordinated Debt Trustee each year a certificate as to whether or not we are in compliance with the conditions and covenants under the Subordinated Indenture.  (Section 5.5 of the Subordinated Indenture).
 
Defeasance and Discharge
 
We may be discharged from all obligations relating to the subordinated debt securities and the Subordinated Indenture (except for specified obligations such as obligations to register the transfer or exchange of securities, replace stolen, lost or mutilated securities and maintain paying agencies) if we irrevocably deposit with the Subordinated Debt Trustee, in trust for the benefit of holders of securities, money or U.S. government obligations (or any combination thereof) sufficient to make all payments of principal, premium and interest on the securities on the dates those payments are due.  To discharge these obligations, we must deliver to the Subordinated Debt Trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling or similar pronouncement by the Internal Revenue Service or that there has been a change in law, in either case to the effect that the holders of the securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or discharge of the Subordinated Indenture, and holders will be subject to tax in the same manner, in the same amounts and same time as would have been the case absent such defeasance.  Upon any discharge of our obligations as described above, we will be deemed to have paid and discharged our entire indebtedness represented by the subordinated debt securities and our obligations under the subordinated debt securities.  (Section 4.1 of the Subordinated Indenture).
 
 
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Modification
 
Unless we indicate otherwise in the applicable prospectus supplement, we and the Subordinated Debt Trustee may modify and amend the Subordinated Indenture from time to time.
 
We will not need the consent of the holders for the following types of amendments:
 
 
·
curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision or supplying an omission arising under the Subordinated Indenture;
 
 
·
changing or eliminating any of the provisions of the Subordinated Indenture, provided that any such change or elimination is to become effective only when:
 
 
·
there is no outstanding security created prior to the execution of the supplemental indenture that is entitled to receive the benefit of this provision; or
 
 
·
this change or elimination is applicable only to securities issued after the date this change or elimination becomes effective;
 
 
·
establishing the form of the securities or establishing or reflecting any terms of any security as provided in the Subordinated Indenture;
 
 
·
evidencing our successor corporation and the assumption by our successor of our covenants in the Subordinated Indenture and in the securities;
 
 
·
granting to or conferring upon the Subordinated Debt Trustee any additional rights, remedies, powers or authority for the benefit of the holders of the securities;
 
 
·
permitting the Subordinated Debt Trustee to comply with any duties imposed upon it by law;
 
 
·
specifying further the duties and responsibilities of the Subordinated Debt Trustee, any authenticating agent and any paying agent and defining further the relationships among the Subordinated Debt Trustee, authenticating agent and paying agent;
 
 
·
adding to our covenants for the benefit of the holders of the securities, surrendering a right given to us in the Subordinated Indenture or adding any event of default with respect to one or more series of securities;
 
 
·
facilitating defeasance and discharge of any series of the securities, provided that such action shall not adversely affect the interest of any holder;
 
 
·
adding security for the securities; or
 
 
·
making any other change that is not prejudicial to the Subordinated Debt Trustee or the holders of the securities.
 
 
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(Section 12.1 of the Subordinated Indenture).
 
We will need the consent of the holders of each outstanding security affected by a proposed amendment if the amendment would cause any of the following to occur:
 
 
·
a change in the maturity date, reduction of the interest rate, or extension of the time of payment of interest, of any security;
 
 
·
a reduction in the principal amount of any security or the premium payable on any security;
 
 
·
a change in the currency of any payment of principal, premium or interest on any security;
 
 
·
a change in date on which any security may be redeemed or repaid at the option of the holder;
 
 
·
an impairment of the right of a holder to institute suit for the enforcement of any payment relating to any security;
 
 
·
a reduction in the percentage of outstanding securities necessary to consent to the modification or amendment of the Subordinated Indenture;
 
 
·
a modification of these requirements or a reduction to less than a majority of the percentage of outstanding securities necessary to waive events of default; or
 
 
·
a modification of the subordination provisions in a manner adverse to such holders.
 
(Section 12.2 of the Subordinated Indenture).
 
Amendments other than those described in the above two paragraphs will require the approval of a majority in principal amount of the outstanding securities of all series, provided that if there are securities of more than one series outstanding and if a proposed amendment would directly affect the rights of holders of securities of one or more, but less than all, of such series, then the approval of a majority in principal amount of the outstanding securities of all series so directly affected, considered as one class, will be required.
 
Consolidation, Merger and Sale of Assets; No Financial Covenants
 
We will not consolidate with or merge into any other corporation or sell, or otherwise dispose all or substantially all of our assets unless the successor or transferee corporation assumes by supplemental indenture our obligations to pay the principal, interest and premium on all the securities and our obligation to perform every covenant of the Subordinated Indenture that we are to perform or observe, and we or the successor or transferee corporation, as applicable, are not immediately following such consolidation or merger, or sale, or disposition in default in the performance of any such covenant.  Upon any consolidation or merger, or any sale, transfer or other disposition of all or substantially all of our assets, the successor or transferee corporation will succeed to, and be substituted for, and may exercise all of our rights and powers under the Subordinated Indenture with the same effect as if the successor corporation had been named as us in the Subordinated Indenture and we will be released from all obligations under the Subordinated Indenture.  Regardless of whether a sale or transfer of assets might otherwise be considered a sale of all or substantially all of our assets, the Subordinated Indenture also specifically permits any sale, transfer or conveyance of our non-utility subsidiaries if, following such sale or transfer, the securities are rated by Standard & Poor’s Ratings Group and Moody’s Investors Service, Inc. at least as high as the ratings accorded the securities immediately prior to the sale, transfer or disposition.  (Sections 11.1 and 11.2 of the Subordinated Indenture).
 
The Subordinated Indenture does not contain any financial or other similar restrictive covenants.
 
 
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Resignation or Removal of Subordinated Debt Trustee
 
The Subordinated Debt Trustee may resign with respect to securities of any series at any time by notifying us in writing and specifying the day that the resignation is to take effect.  The resignation will not take effect, however, until the later of the appointment of a successor trustee and the day the resignation is to take effect.  (Section 8.10 of the Subordinated Indenture).
 
The holders of a majority in principal amount of the outstanding securities of any series may remove the Subordinated Debt Trustee as trustee of that series of securities at any time.  In addition, so long as no event of default or event which, with the giving of notice or lapse of time or both, would become an event of default has occurred and is continuing with respect to securities of any series, we may remove the Subordinated Debt Trustee with respect to securities of that series upon notice to the holder of each security of that series outstanding and written notice to the Subordinated Debt Trustee.  (Section 8.10 of the Subordinated Indenture).
 
Governing Law
 
The Subordinated Indenture and the subordinated debt securities will be governed by, and will be construed in accordance with, the laws of the State of Minnesota. (Section 15.4 of the Subordinated Indenture).
 
The Subordinated Debt Trustee
 
The Subordinated Indenture requires that the Subordinated Trustee be a corporation organized and doing business under the laws of the United States or any State thereof or of the District of Columbia (or a corporation or other person permitted to act as trustee by the Commission), subject to supervision or examination by such bodies and authorized under such laws to exercise corporate trust powers and having a combined capital and surplus of at least $150,000,000.   If at any time the Subordinated Trustee shall cease to be eligible to serve as trustee under the Subordinated Indenture, the Subordinated Trustee shall resign immediately and a new trustee will be appointed as provided in the Subordinated Indenture.
 
 
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DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
 
The description below contains summaries of selected provisions of the indenture, including supplemental indentures, under which the junior subordinated debt securities may be issued (referred to herein as “junior subordinated indenture”).  These summaries are not complete. The junior subordinated indenture and the form of the supplemental indenture applicable to the junior subordinated debt securities have been filed as exhibits to the registration statement.  You should read them for provisions that may be important to you.  In the summaries below, we have included references to section numbers of the junior subordinated indenture so that you can easily locate these provisions.
 
We are not required to issue future issues of junior subordinated indebtedness under the junior subordinated indenture described in this prospectus.  We are free to use other indentures or documentation, containing provisions different from those described in this prospectus, in connection with future issues of other junior subordinated indebtedness not under this registration statement.
 
The junior subordinated debt securities will be represented either by global junior subordinated debt securities registered in the name of the Depository or its nominee, or by securities in certificated form issued to the registered owners, as set forth in the applicable prospectus supplement.  See the information under the heading “Book-Entry System” in this prospectus.
 
General
 
The junior subordinated debt securities will be issued in one or more new series under an indenture dated as of January 1, 2008 between us and Wells Fargo Bank, National Association, as trustee (the “Junior Subordinated Debt Trustee”).  This junior subordinated indenture, as it may be supplemented by a supplemental indenture for each series of junior subordinated debt securities, is referred to in this prospectus as the “Junior Subordinated Indenture.”  As of June 30, 2012, we have one series of junior subordinated debt in the aggregate principal amount of $400 million outstanding under the Junior Subordinated Indenture.
 
The junior subordinated debt securities will be our unsecured obligations and will rank on a parity in right of payment with all of our existing and future junior subordinated indebtedness and junior in right of payment to our Senior Ranking Indebtedness, as described under the caption “—Subordination”. As of June 30, 2012, our outstanding Senior Ranking Indebtedness (as defined below) was approximately $1.4 billion.
 
In addition, the junior subordinated debt securities will be effectively subordinated to all existing and future liabilities of our subsidiaries, including trade creditors, debtholders, secured creditors, taxing authorities, guarantee holders and any preferred stockholders.  We are a holding company and conduct business through our various subsidiaries.  As a result, our cash flow and consequent ability to meet our debt obligations primarily depend on the earnings of our subsidiaries, and on dividends and other payments from our subsidiaries.  Under certain circumstances, contractual and legal restrictions, as well as the financial condition and operating requirements of our subsidiaries, could limit our ability to obtain cash from our subsidiaries for the purpose of meeting debt service obligations, including the payment of principal and interest on the junior subordinated debt securities.  Any rights to receive assets of any subsidiary upon its liquidation or reorganization and the consequent right of the holders of the junior subordinated debt securities to participate in those assets will be subject to the claims of that subsidiary’s creditors, including trade creditors, except to the extent that we are recognized as a creditor of that subsidiary, in which case our claims would still be subordinate to any security interests in the assets of that subsidiary.  As of June 30, 2012, our subsidiaries had approximately $18.9 billion of indebtedness and other liabilities outstanding.
 
Unless the supplemental indenture that describes a particular series of junior subordinated debt securities provides otherwise with respect to that series, the holders of any junior subordinated debt securities offered by this prospectus will not have the right to require us to repurchase the junior subordinated debt securities if we become involved in a highly leveraged or change in control transaction.  The Junior Subordinated Indenture does not have any provision that is designed specifically in response to highly leveraged or change in control transactions.
 
The amount of junior subordinated debt securities that we may issue under the Junior Subordinated Indenture is not limited.  We are not required to issue all junior subordinated debt securities of one series at the same time and, unless we indicate otherwise in the applicable prospectus supplement, we may reopen a series for issuances of additional junior subordinated debt securities of that series without the consent of the holders of the junior subordinated debt securities of that series.
 
 
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When we offer to sell a particular series of junior subordinated debt securities, we will describe the specific terms of that series in a prospectus supplement relating to that series, including the following terms:
 
 
·
the title, aggregate principal amount and offering price of that series of junior subordinated debt securities;
 
 
·
the interest rate or rates, or method of calculation of such rate or rates, on that series, and the date from which the interest will accrue;
 
 
·
the dates on which interest will be payable;
 
 
·
any rights that would allow us to defer or extend an interest payment date;
 
 
·
the record dates for payments of interest;
 
 
·
the date on which the junior subordinated debt securities of that series will mature;
 
 
·
any redemption terms;
 
 
·
the period or periods within which, the price or prices at which and the terms and conditions upon which the junior subordinated debt securities of that series may be repaid, in whole or in part, at the option of the holder thereof;
 
 
·
any changes to events of default or covenants;
 
 
·
any changes to subordination provisions; and
 
 
·
other specific terms applicable to the junior subordinated debt securities of that series.
 
Any special U.S. federal income tax considerations applicable to junior subordinated debt securities sold at an original issue discount and any special U.S. federal income tax or other considerations applicable to any junior subordinated debt securities which are denominated in currencies other than U.S. dollars will be described in the prospectus supplement relating to that series of junior subordinated debt securities.
 
Unless we indicate otherwise in the applicable prospectus supplement, the junior subordinated debt securities will be denominated in U.S. dollars in minimum denominations of $1,000 and integral multiples thereof.
 
Subordination
 
Each series of junior subordinated debt securities will be subordinate and junior in right of payment, to the extent set forth in the Junior Subordinated Indenture, to all Senior Ranking Indebtedness (as defined below).  If:
 
 
·
we make a payment or distribution of any of our assets to creditors upon our dissolution, winding-up, liquidation or reorganization, whether in bankruptcy, insolvency or otherwise;
 
 
·
a default in the payment of principal or interest on any Senior Ranking Indebtedness has occurred and is continuing; or
 
 
·
the maturity of any Senior Ranking Indebtedness has been accelerated because of a default on that Senior Ranking Indebtedness,
 
then the holders of Senior Ranking Indebtedness generally will have the right to receive payment, in the case of the first instance above, of all amounts due or to become due upon that Senior Ranking Indebtedness, and, in the case of the second and third instances, of all amounts due on that Senior Ranking Indebtedness, or we will make provision for those payments, before the holders of any junior subordinated debt securities have the right to receive any payments of principal or interest on their securities.  (Sections 14.1 and 14.9 of the Junior Subordinated Indenture).
 
 
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“Senior Ranking Indebtedness” means, with respect to any series of junior subordinated debt securities, the principal, premium, interest and any other payment in respect of any of the following, whether outstanding on the date of execution of the Junior Subordinated Indenture or thereafter incurred, other than obligations expressly on a parity with or junior to the junior subordinated debt securities:
 
 
·
all of our current and future indebtedness for borrowed or purchase money whether or not evidenced by bonds, debentures, notes or other similar written instruments, including indebtedness issued under our Senior Indenture or Subordinated Indenture described above;
 
 
·
our obligations under synthetic leases, finance leases and capitalized leases;
 
 
·
our obligations for reimbursement under letters of credit, banker’s acceptances, security purchase facilities or similar facilities issued for our account;
 
 
·
any of our other indebtedness or obligations with respect to derivative contracts, including commodity contracts, interest rate, commodity and currency swap agreements, forward contracts and other similar agreements or arrangements designed to protect against fluctuations in commodity prices, currency exchange or interest rates; and
 
 
·
all indebtedness of others of the kinds described in the preceding categories which we have assumed or guaranteed.
 
Senior Ranking Indebtedness will not include trade accounts payable, accrued liabilities arising in the ordinary course of business, indebtedness to our subsidiaries or any indebtedness which is by its terms junior to or on parity with the junior subordinated debt securities.  (Section 1.3 of the Junior Subordinated Indenture.)
 
Senior Ranking Indebtedness will be entitled to the benefits of the subordination provisions in the Junior Subordinated Indenture irrespective of the amendment, modification or waiver of any term of the Senior Ranking Indebtedness.  We may not amend the Junior Subordinated Indenture to change the subordination of any outstanding junior subordinated debt securities without the consent of each holder of junior subordinated debt securities that such amendment would adversely affect.  (Sections 12.2 and 14.7 of the Junior Subordinated Indenture.)
 
The Junior Subordinated Indenture does not limit the amount of junior subordinated debt securities that we may issue.
 
Registration, Transfer and Exchange
 
Junior subordinated debt securities of any series may be exchanged for other junior subordinated debt securities of the same series of any authorized denominations and of a like aggregate principal amount, series and stated maturity and having the same terms and original issue date or dates.  (Section 2.6 of the Junior Subordinated Indenture).
 
Unless we indicate otherwise in the applicable prospectus supplement, junior subordinated debt securities may be presented for registration of transfer (duly endorsed or accompanied by a duly executed written instrument of transfer), at the office of the Junior Subordinated Debt Trustee maintained for that purpose with respect to any series of junior subordinated debt securities and referred to in the applicable prospectus supplement, without service charge and upon payment of any taxes and other governmental charges as described in the Junior Subordinated Indenture.  Any transfer or exchange will be effected if the junior subordinated debt securities are duly endorsed by, or accompanied by a written instrument or instruments of transfer in a form satisfactory to the Company and the Junior Subordinated Debt Trustee and duly executed by the holder of the junior subordinated debt security as described in the Junior Subordinated Indenture.  (Section 2.6 of the Junior Subordinated Indenture).
 
 
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The Junior Subordinated Debt Trustee will not be required to exchange or register a transfer of any junior subordinated debt securities of a series selected, called or being called for redemption except, in the case of any junior subordinated debt security to be redeemed in part, the portion thereof not to be so redeemed.  (Section 2.6 of the Junior Subordinated Indenture).  See the information under the heading “Book-Entry System” in this prospectus.
 
Payment and Paying Agents
 
Principal, interest and premium, if any, on junior subordinated debt securities issued in the form of global junior subordinated debt securities will be paid in the manner described below under the heading “Book-Entry System.”  Unless we indicate otherwise in the applicable prospectus supplement, interest on junior subordinated debt securities that are in the form of certificated junior subordinated debt securities will be paid by check mailed to the holder at that person’s address as it appears in the register for the junior subordinated debt securities maintained by the Junior Subordinated Debt Trustee; however, a holder of $10,000,000 or more junior subordinated debt securities having the same interest payment dates will be entitled to receive payments of interest by wire transfer to a bank within the continental United States if appropriate wire transfer instructions have been received by the Junior Subordinated Debt Trustee on or prior to the applicable record date.  (Section 2.12 of the Junior Subordinated Indenture).  Unless we indicate otherwise in the applicable prospectus supplement, the principal, interest at maturity and premium, if any, on junior subordinated debt securities in the form of certificated junior subordinated debt securities will be payable in immediately available funds at the office of the Junior Subordinated Debt Trustee.  (Section 2.12 of the Junior Subordinated Indenture).
 
All monies paid by us to a paying agent for the payment of principal, interest or premium, if any, on any junior subordinated debt security which remain unclaimed at the end of two years after that principal, interest or premium has become due and payable will be repaid to us and the holder of that junior subordinated debt security will thereafter look only to us for payment of that principal, interest or premium.  (Section 4.4 of the Junior Subordinated Indenture).
 
Events of Default and Remedies
 
Unless we provide otherwise in a prospectus supplement, the following will constitute events of default under the Junior Subordinated Indenture with respect to the junior subordinated debt securities of any series:
 
 
·
default in the payment of principal and premium, if any, on any security of such series when due and payable and continuance of that default for 5 days;
 
 
·
default in the payment of interest on any security of such series when due and continuance of that default for 30 days (subject, if applicable, to the right to optionally defer interest payments);
 
 
·
default in the performance or breach of our other covenants or warranties in the securities of such series or in the Junior Subordinated Indenture (other than a covenant or agreement that has been expressly included in the Junior Subordinated Indenture for the benefit of one or more series of junior subordinated debt securities other than such series) and the continuation of that default or breach for 90 days after written notice to us as provided in the Junior Subordinated Indenture; and
 
 
·
specified events of bankruptcy, insolvency or reorganization of our company.
 
(Section 7.1 of the Junior Subordinated Indenture).
 
Acceleration of Maturity .  If an event of default occurs and is continuing with respect to a series of junior subordinated debt securities, either the Junior Subordinated Debt Trustee or the holders of at least 25% in principal amount of the outstanding securities of that series may declare the principal amount of all securities of that series to be due and payable immediately.  At any time after an acceleration of a series of securities has been declared, but before a judgment or decree of the immediate payment of the principal amount of those securities has been obtained, if:
 
 
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·
holders of a majority in aggregate principal amount of the securities of that series rescind in writing the acceleration; and
 
 
·
we pay or deposit with the Junior Subordinated Debt Trustee a sum sufficient to pay all matured installments of interest with respect to that series of securities and the principal and any premium which has become due with respect to that series of securities otherwise than by acceleration and all defaults with respect to that series of securities have been cured or waived,
 
then that holders’ rescission and the payment or deposit will cause an automatic rescission and annulment of the acceleration of the securities of that series.  (Section 7.1 of the Junior Subordinated Indenture).
 
Indemnification of Junior Subordinated Debt Trustee .  The Junior Subordinated Debt Trustee generally will be under no obligation to exercise any of its rights or powers under the Junior Subordinated Indenture at the request or direction of any of the holders unless such holders have offered reasonable security or indemnity to the Junior Subordinated Debt Trustee.  (Section 8.2 of the Junior Subordinated Indenture).
 
Right to Direct Proceedings .  The holders of a majority in principal amount of the outstanding securities of a series generally will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Junior Subordinated Debt Trustee, or of exercising any trust or power conferred on the Junior Subordinated Debt Trustee, relating to the securities of that series.  Notwithstanding, the Junior Subordinated Debt Trustee may refuse to follow any direction that conflicts with law or the Junior Subordinated Indenture or would expose the Junior Subordinated Debt Trustee to personal liability or be unduly prejudicial to holders not joining in such proceeding.  (Section 7.7 of the Junior Subordinated Indenture).
 
Limitation on Rights to Institute Proceedings .  No holder of the junior subordinated debt securities of a series will have any right to pursue a remedy under the Junior Subordinated Indenture, unless:
 
 
·
the holder has previously given the Junior Subordinated Debt Trustee written notice of a continuing event of default on the series;
 
 
·
the holders of at least a majority in principal amount of the outstanding securities of all series affected by such event of default, considered as one class, have made written request, and the holder or holders have offered indemnity satisfactory to the Junior Subordinated Debt Trustee to pursue the remedy; and
 
 
·
the Junior Subordinated Debt Trustee has failed to comply with the request within 60 days after the request and offer.
 
(Section 7.4 of the Junior Subordinated Indenture).
 
No Impairment of Right to Receive Payment .  Notwithstanding any other provision of the Junior Subordinated Indenture, the holder of any junior subordinated debt security will have the absolute and unconditional right to receive payment of the principal, premium, if any, and interest on that junior subordinated debt security when due and payable, and to institute suit for enforcement of that payment.  This right may not be impaired without the consent of the holder.  (Section 7.4 of the Junior Subordinated Indenture).
 
Notice of Default .  The Junior Subordinated Debt Trustee is required to give the holders of a series of securities notice of the occurrence of a default within 90 days of the default with respect to that series, unless the default is cured or waived.  Except in the case of a payment default on the junior subordinated debt securities, or a default in the payment of any sinking or purchase fund installments, the Junior Subordinated Debt Trustee may withhold the notice if its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers determines in good faith that it is in the interest of holders of the series of affected securities to do so.  (Section 7.8 of the Junior Subordinated Indenture).  We are required to deliver to the Junior Subordinated Debt Trustee each year a certificate as to whether or not we are in compliance with the conditions and covenants under the Junior Subordinated Indenture.  (Section 5.5 of the Junior Subordinated Indenture).
 
 
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Defeasance and Discharge
 
We may be discharged from all obligations relating to the junior subordinated debt securities and the Junior Subordinated Indenture (except for specified obligations such as obligations to register the transfer or exchange of securities, replace stolen, lost or mutilated securities and maintain paying agencies) if we irrevocably deposit with the Junior Subordinated Debt Trustee, in trust for the benefit of holders of securities, money or U.S. government obligations (or any combination thereof) sufficient to make all payments of principal, premium and interest on the securities on the dates those payments are due.  To discharge these obligations, we must deliver to the Junior Subordinated Debt Trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling or similar pronouncement by the Internal Revenue Service or that there has been a change in law, in either case to the effect that the holders of the securities will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or discharge of the Junior Subordinated Indenture, and holders will be subject to tax in the same manner, in the same amounts and same time as would have been the case absent such defeasance.  Upon any discharge of our obligations as described above, we will be deemed to have paid and discharged our entire indebtedness represented by the junior subordinated debt securities and our obligations under the junior subordinated debt securities.  (Section 4.1 of the Junior Subordinated Indenture).
 
Modification
 
Unless we indicate otherwise in the applicable prospectus supplement, we and the Junior Subordinated Debt Trustee may modify and amend the Junior Subordinated Indenture from time to time.
 
We will not need the consent of the holders for the following types of amendments:
 
 
·
curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision or supplying an omission arising under the Junior Subordinated Indenture;
 
 
·
changing or eliminating any of the provisions of the Junior Subordinated Indenture, provided that any such change or elimination is to become effective only when:
 
 
·
there is no outstanding security created prior to the execution of the supplemental indenture that is entitled to receive the benefit of this provision; or
 
 
·
this change or elimination is applicable only to securities issued after the date this change or elimination becomes effective;
 
 
·
establishing the form of the securities or establishing or reflecting any terms of any security as provided in the Junior Subordinated Indenture;
 
 
·
evidencing our successor corporation and the assumption by our successor of our covenants in the Junior Subordinated Indenture and in the securities;
 
 
·
granting to or conferring upon the Junior Subordinated Debt Trustee any additional rights, remedies, powers or authority for the benefit of the holders of the securities;
 
 
·
permitting the Junior Subordinated Debt Trustee to comply with any duties imposed upon it by law;
 
 
·
specifying further the duties and responsibilities of the Junior Subordinated Debt Trustee, any authenticating agent and any paying agent and defining further the relationships among the Junior Subordinated Debt Trustee, authenticating agent and paying agent;
 
 
·
adding to our covenants for the benefit of the holders of the securities, surrendering a right given to us in the Junior Subordinated Indenture or adding any event of default with respect to one or more series of securities;
 
 
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·
facilitating defeasance and discharge of any series of the securities, provided that such action shall not adversely affect the interest of any holder;
 
 
·
adding security for the securities; or
 
 
·
making any other change that is not prejudicial to the Junior Subordinated Debt Trustee or the holders of the securities.
 
(Section 12.1 of the Junior Subordinated Indenture).
 
We will need the consent of the holders of each outstanding security affected by a proposed amendment if the amendment would cause any of the following to occur:
 
 
·
a change in the maturity date, reduction of the interest rate, or extension of the time of payment of interest, of any security;
 
 
·
a reduction in the principal amount of any security or the premium payable on any security;
 
 
·
a change in the currency of any payment of principal, premium or interest on any security;
 
 
·
a change in date on which any security may be redeemed or repaid at the option of the holder;
 
 
·
an impairment of the right of a holder to institute suit for the enforcement of any payment relating to any security;
 
 
·
a reduction in the percentage of outstanding securities necessary to consent to the modification or amendment of the Junior Subordinated Indenture;
 
 
·
a modification of these requirements or a reduction to less than a majority of the percentage of outstanding securities necessary to waive events of default; or
 
 
·
a modification of the subordination provisions in a manner adverse to such holders.
 
(Section 12.2 of the Junior Subordinated Indenture).
 
Amendments other than those described in the above two paragraphs will require the approval of a majority in principal amount of the outstanding securities of all series, provided that if there are securities of more than one series outstanding and if a proposed amendment would directly affect the rights of holders of securities of one or more, but less than all, of such series, then the approval of a majority in principal amount of the outstanding securities of all series so directly affected, considered as one class, will be required.
 
Consolidation, Merger and Sale of Assets; No Financial Covenants
 
We will not consolidate with or merge into any other corporation or sell, or otherwise dispose all or substantially all of our assets unless the successor or transferee corporation assumes by supplemental indenture our obligations to pay the principal, interest and premium on all the securities and our obligation to perform every covenant of the Junior Subordinated Indenture that we are to perform or observe, and we or the successor or transferee corporation, as applicable, are not immediately following such consolidation or merger, or sale, or disposition in default in the performance of any such covenant.  Upon any consolidation or merger, or any sale, transfer or other disposition of all or substantially all of our assets, the successor or transferee corporation will succeed to, and be substituted for, and may exercise all of our rights and powers under the Junior Subordinated Indenture with the same effect as if the successor corporation had been named as us in the Junior Subordinated Indenture and we will be released from all obligations under the Junior Subordinated Indenture.  Regardless of whether a sale or transfer of assets might otherwise be considered a sale of all or substantially all of our assets, the Junior Subordinated Indenture also specifically permits any sale, transfer or conveyance of our non-utility subsidiaries if, following such sale or transfer, the securities are rated by Standard & Poor’s Ratings Group and Moody’s Investors Service, Inc. at least as high as the ratings accorded the securities immediately prior to the sale, transfer or disposition.  (Sections 11.1 and 11.2 of the Junior Subordinated Indenture).
 
 
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The Junior Subordinated Indenture does not contain any financial or other similar restrictive covenants.
 
Resignation or Removal of Junior Subordinated Debt Trustee
 
The Junior Subordinated Debt Trustee may resign with respect to securities of any series at any time by notifying us in writing and specifying the day that the resignation is to take effect.  The resignation will not take effect, however, until the later of the appointment of a successor trustee and the day the resignation is to take effect.  (Section 8.10 of the Junior Subordinated Indenture).
 
The holders of a majority in principal amount of the outstanding securities of any series may remove the Junior Subordinated Debt Trustee as trustee of that series of securities at any time.  In addition, so long as no event of default or event which, with the giving of notice or lapse of time or both, would become an event of default has occurred and is continuing with respect to securities of any series, we may remove the Junior Subordinated Debt Trustee with respect to securities of that series upon notice to the holder of each security of that series outstanding and written notice to the Junior Subordinated Debt Trustee.  (Section 8.10 of the Junior Subordinated Indenture).
 
Governing Law
 
The Junior Subordinated Indenture and the junior subordinated debt securities will be governed by, and will be construed in accordance with, the laws of the State of Minnesota. (Section 15.4 of the Junior Subordinated Indenture).
 
Concerning the Junior Subordinated Debt Trustee
 
Wells Fargo Bank, National Association is the Junior Subordinated Debt Trustee.  We maintain banking relationships with the Junior Subordinated Debt Trustee in the ordinary course of business.  The Junior Subordinated Debt Trustee also acts as trustee for our senior debt securities and certain debt securities of our subsidiaries.
 
 
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DESCRIPTION OF COMMON STOCK
 
The following summary description sets forth some of the general terms and provisions of the common stock.  This summary is not complete.  For a more detailed description of the common stock, you should refer to the provisions of our Amended and Restated Articles of Incorporation (“Articles”) and Bylaws.  The Articles and the Bylaws have been filed as exhibits to the registration statement.  You should read them for provisions that may be important to you.
 
General
 
Our capital stock consists of two classes:  common stock, par value $2.50 per share (1,000,000,000 shares currently authorized of which 487,553,810 shares were outstanding as of July 26, 2012); and preferred stock, par value $100 per share (7,000,000 shares authorized, of which no shares were outstanding as of July 26, 2012).
 
Dividend Rights
 
Before we can pay any dividends on our common stock, the holders of shares of our preferred stock, if any, are entitled to receive dividends at the respective rates provided for in the terms of the shares of any outstanding series.  In addition, our Junior Subordinated Indenture places restrictions on our ability to declare and pay dividends in the event we defer the payment of all or part of the current and accrued interest on our Junior Subordinated Notes due 2068.  As of June 30, 2012, we have paid all current and accrued interest on such notes.
 
Because we are a holding company and conduct all of our operations through our subsidiaries, our cash flow and ability to pay dividends is dependent on the earnings and cash flows of our subsidiaries and the distribution or other payment of those earnings to us in the form of dividends, or in the form of repayments of loans or advances to us.  Some of our subsidiaries may have restrictions on their ability to pay dividends including covenants under their borrowing arrangements and mortgage indentures, and possibly also restrictions imposed by their regulators and by statute. See “Management’s Discussion and Analysis of Financial Conditions and Results of Operations—Common Stock Dividends” in our most recent Annual Report on Form 10-K for a discussion of factors affecting our payment of dividends including limitations imposed by statute.
 
Voting Rights
 
The holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of our stockholders.
 
Preferred Stock
 
Our board of directors is authorized, to the fullest extent permitted by law, to establish out of our authorized capital stock up to 7,000,000 shares of preferred stock, which may be issued in one or more classes or series, having such dividend rights and times of payment, redemption prices, liquidation prices or preferences as to assets in voluntary liquidation, and other relative rights and preferences as our board of directors shall determine.  As of July 26, 2012, no shares of preferred stock were outstanding.  The terms of any preferred stock issued by the Company could have the effect of delaying or preventing a change in control without further action by our shareholders. The issuance of shares of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of our common stock.
 
Change of Control
 
Our Bylaws and the Minnesota Business Corporation Act, as amended (the “Minnesota BCA”), contain provisions that could discourage, delay, prevent or make more difficult a change of control of our company including, but not limited to, those summarized below.
 
Bylaw Provisions .   Under our Bylaws, our shareholders must provide us advance notice of the introduction by them of business at annual meetings of our shareholders.  For a shareholder to properly bring a proposal before an annual meeting, the shareholder must comply with the shareholder proposal requirements under the federal proxy rules or deliver a written notice to our Corporate Secretary not less than ninety days prior to the date on which we first mailed our proxy materials for the prior year’s annual meeting.  If, however, the date of the annual meeting is more than thirty days before or after such anniversary date, the notice must be so delivered or so mailed and received not less than ninety days before the annual meeting or, if later, within ten days after the first public announcement of the date of the annual meeting.  Except to the extent otherwise required by law, the adjournment of an annual meeting of shareholders will not commence a new time period for the giving of a shareholder’s notice as required above.  The required notice from a shareholder must contain a description of the business being introduced, the reasons for introducing such business, the name and address of each shareholder supporting the introduction and such other information as required under our Bylaws and federal proxy rules.

 
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Minnesota BCA .   Section 302A.671 of the Minnesota BCA applies to potential acquirers of 20% or more of our voting shares.  Section 302A.671 provides in substance that shares acquired by such acquirer will not have any voting rights unless the voting rights are either:
 
 
·
approved by (i) a majority of the voting power of all of our shares entitled to vote including all shares held by the acquirer and (ii) a majority of the voting power of all of our shares entitled to vote excluding all interested shares; or
 
 
·
acquired in a transaction that (i) is pursuant to a tender offer or exchange offer for all of our voting shares, (ii) results in the acquirer becoming the owner of at least a majority of our outstanding voting shares, and (iii) has been approved by a committee of disinterested directors.
 
Section 302A.673 of the Minnesota BCA generally prohibits public Minnesota corporations, including us, from engaging in any business combination with a person or entity owning, directly or indirectly, 10% or more of our voting shares for a period of four years after the date of the transaction in which such person or entity became a 10% shareholder unless the business combination or the acquisition resulting in 10% ownership was approved by a committee of disinterested directors prior to the date such person or entity became a 10% shareholder.
 
Section 302A.675 of the Minnesota BCA provides in substance that a person or entity making a takeover offer (an “offeror”) for us is prohibited from acquiring any additional shares of our company within two years following the last purchase of shares pursuant to the offer with respect to that class unless (i) the acquisition is approved by a committee of disinterested directors before the purchase of any shares by the offeror pursuant to the offer or (ii) our shareholders are afforded, at the time of the acquisition, a reasonable opportunity to dispose of their shares to the offeror upon substantially equivalent terms as those provided in the earlier takeover offer.
 
Liquidation Rights
 
If we were to liquidate, subject to the terms of any outstanding series of preferred stock, the holders of our common stock are entitled to receive pro rata our assets legally available for distribution to stockholders.
 
Preemptive and Subscription Rights
 
No holder of our capital stock has the preemptive right to purchase or subscribe for any additional shares of our capital stock.
 
Concerning the Transfer Agent
 
Our common stock is listed on the New York Stock Exchange.  Wells Fargo Shareowner Services is the Transfer Agent and Registrar for the common stock.  An affiliate of the Transfer Agent and Registrar, Wells Fargo Bank, National Association, also acts as trustee for our senior debt securities, junior subordinated securities and certain debt securities of our subsidiaries.
 
DESCRIPTION OF PREFERRED STOCK
 
Our board of directors is authorized, to the fullest extent permitted by law, to establish out of our authorized capital stock up to 7,000,000 shares of preferred stock, which may be issued in one or more classes or series, having such dividend rights and times of payment, redemption prices, liquidation prices or preferences, and the other rights and preferences as our board of directors shall determine at the time of issuance.  As of July 26, 2012, no shares of preferred stock were outstanding.
 
 
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The issuance of our preferred stock, while potentially providing us with flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or delay or deter a third party from attempting to acquire, a majority of our outstanding voting stock.
 
The rights, preferences, privileges and restrictions of the preferred stock of each series will be fixed by resolution of the board of directors.  To the extent appropriate, we will include in a prospectus supplement the terms relating to any series of preferred stock being offered thereby.  These terms will include some or all of the following, as applicable:
 
 
·
the title of the series and the number of shares in the series;

 
·
the price at which the preferred stock will be offered;

 
·
the dividend rate or rates or method of calculating the rates, the dates on which and the place or places where the dividends will be payable, whether the dividends will be cumulative or noncumulative and, if cumulative, the dates from which dividends on the preferred stock being offered will cumulate;

 
·
the voting rights, if any, of the holders of shares of the preferred stock being offered;

 
·
the provisions for a sinking fund, if any, and the provisions for redemption, if applicable, of the preferred stock being offered;

 
·
the liquidation preference per share;

 
·
the terms and conditions, if applicable, upon which the preferred stock being offered will be convertible into our common stock, including the conversion price, or the manner of calculating the conversion price, and the conversion period;

 
·
any date of maturity of the preferred stock;

 
·
any listing of the preferred stock being offered on any securities exchange;

 
·
whether interests in the shares of the series will be represented by depositary shares;

 
·
a discussion of any material U.S. federal income tax considerations applicable to the preferred stock being offered;

 
·
the relative ranking and preferences of the preferred stock being offered as to dividend rights and rights upon liquidation, dissolution, or the winding up of our affairs;

 
·
any limitations on the issuance of any class or series of preferred stock ranking senior or equal to the series of preferred stock being offered as to dividend rights and rights upon liquidation, dissolution or the winding up of our affairs; and

 
·
any or all other preferences and relative, participating, operational or other special rights or qualifications, limitations or restrictions of the series.
 
The Minnesota BCA provides that the holders of preferred stock have the right to vote separately as a class on any proposal involving changes in the rights or preferences of holders of such preferred stock. This right is in addition to any voting rights that may be provided for in the applicable resolution creating such preferred stock.
 
 
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DESCRIPTION OF DEPOSITARY SHARES
 
We may offer depositary shares (either separately or together with other securities) representing fractional interests in our preferred stock of any series. The following description sets forth certain general terms and provisions of the depositary shares to which any prospectus supplement may relate. The particular terms of the depositary shares to which any prospectus supplement may relate and the extent, if any, to which the general terms and provisions may apply to the depositary shares so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the depositary shares, deposit agreements and depositary receipts described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable deposit agreement and depositary receipts for additional information before you decide whether to purchase any of our depositary shares.
 
In connection with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement. Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Immediately following our issuance of the security related to the depositary shares, we will deposit the shares of our preferred stock with the relevant depositary and will cause the depositary to issue, on our behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest in the share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange, redemption, sinking fund, subscription and liquidation rights).  To the extent appropriate, the applicable prospectus supplement will describe the specific terms of the depositary shares offered thereby.  The terms of any offered depositary shares will be described in a supplement to this prospectus.
 
DESCRIPTION OF WARRANTS
 
We may issue warrants to purchase debt securities, common stock, preferred stock, depositary shares, or any combination thereof, with or without the payment of separate consideration therefor (including by means of a dividend or similar distribution to holders of our outstanding securities). We may issue warrants independently or together with any other securities offered by a prospectus supplement. Warrants may be attached to or separate from such securities and may or may not be transferable. Each series of warrants will be issued under a separate warrant agreement we will enter into with a warrant agent specified in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants of a particular series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. In connection with any warrants, we may enter into a standby underwriting agreement with one or more underwriters pursuant to which the underwriters will agree to purchase any securities underlying such warrants that remain unpurchased upon the expiration of such warrants.  To the extent appropriate, the applicable prospectus supplement will describe the specific terms of the warrants offered thereby.
 
DESCRIPTION OF RIGHTS
 
We may issue subscription rights to purchase shares of our common stock or preferred stock. These subscription rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other investors pursuant to which the underwriters or other investors may be required to purchase any securities remaining unsubscribed for after such offering.  To the extent appropriate, the applicable prospectus supplement will describe the specific terms of the rights offered thereby.
 
DESCRIPTION OF PURCHASE CONTRACTS
 
We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or varying number of debt securities, shares of our common stock or preferred stock, depositary shares, warrants, rights or other property or any combination of the above, at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying number of debt securities, shares of our common stock or preferred stock, depositary shares, warrants, rights or other property. The price of such debt securities, shares of our common stock or preferred stock, depositary shares, warrants, rights or other property may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula described in the purchase contracts. We may issue purchase contracts separately or as a part of units each consisting of a purchase contract and debt securities, preferred securities, warrants, rights or other obligations of third parties, including U.S. Treasury securities, securing their holder’s obligations under the purchase contract. The purchase contracts may require us to make periodic payments to holders or vice versa and the payments may be unsecured or pre-funded on some basis. The purchase contracts may require holders to secure the holder’s obligations in a specified manner that we will file with the SEC in connection with a public offering relating to the purchase contracts.  To the extent appropriate, the applicable prospectus supplement will describe the specific terms of the purchase contracts offered thereby.
 
 
27
 
 
DESCRIPTION OF UNITS
 
We may issue units comprising one or more securities described in this prospectus in any combination. Units may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit may be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit may have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date.  To the extent appropriate, the applicable prospectus supplement will describe the specific terms of the units offered thereby.
 
BOOK-ENTRY SYSTEM
 
Unless otherwise specified in the applicable prospectus supplement, each series of securities offered by this prospectus will be issued as fully-registered global securities representing all or part of that series of securities. This means that we will not issue certificates for that series of securities to the holders. Instead, a global security representing that series of securities will be deposited with, or on behalf of, DTC or its successor, as the depository. The global securities will be registered at the request of DTC in the name of Cede & Co., DTC’s nominee, or such other name as may be requested by an authorized representative of DTC.
 
DTC will keep an electronic record of its participants (for example, your broker) whose clients have purchased securities represented by a global security. Unless a global security is exchanged in whole or in part for a certificated security, a global security may not be transferred, except that DTC, its nominees and successors may transfer a global security as a whole to one another.
 
Beneficial interests in global securities will be shown on, and transfers of interests will be made only through, records maintained by DTC and its participants. The laws of some jurisdictions require that some purchasers take physical delivery of securities in definitive form. These laws may impair the ability to transfer beneficial interests in a global security.
 
We will make payments of principal, interest, if any, and premium, if any, to DTC or its nominee. We, the applicable trustee and any paying agent will treat DTC or its nominee as the owner of the global security for all purposes, including any notices and voting. Accordingly, neither we nor any trustee nor any paying agent will have any direct responsibility or liability to pay amounts due on a global security to owners of beneficial interests in a global security.
 
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants, or “direct participants,” deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or “DTCC.” DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a direct participant either directly or indirectly, an “indirect participant.” Direct participants and indirect participants are referred to collectively as “participants.” The DTC Rules applicable to its participants are on file with the SEC.
 
 
28
 
 
Purchases of global securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of each security, or “beneficial owner,” is in turn to be recorded on the direct and indirect participants’ records. Beneficial owners will not receive written confirmation from DTC of their purchase. Beneficial owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the global securities are to be accomplished by entries made on the books of direct and indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except in the event that use of the book-entry system for the global securities is discontinued.
 
To facilitate subsequent transfers, all securities deposited by direct participants with DTC are registered in the name of Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts such securities are credited, which may or may not be the beneficial owners. The direct and indirect participants remain responsible for keeping account of their holdings on behalf of their customers.
 
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
 
 If a particular series of securities is redeemable at our option or at the option of the holder, redemption notices will be sent to DTC. If less than all of the securities of a series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in such series to be redeemed. Redemption proceeds and distributions on global securities will be made to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC. Upon DTC’s receipt of funds and corresponding detail information from us, any trustee or any paying agent, DTC’s practice is to credit direct participants’ accounts in accordance with the holdings information shown on DTC’s records on the payment date. Payments by participants to beneficial owners of securities will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name.” Payments will be the responsibility of such participant and not of DTC nor its nominee, any trustee, any paying agent or us, subject to any statutory or regulatory requirements. Payment of redemption proceeds and distributions to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC is the responsibility of us, the applicable trustee or the applicable paying agent, disbursement of such payments to direct participants will be the responsibility of DTC, and disbursement of such payments to the beneficial owners will be the responsibility of direct and indirect participants.
 
Neither DTC nor Cede & Co. or any other DTC nominee will consent or vote with respect to global securities unless authorized by a direct participant in accordance with DTC’s procedures. Under its usual procedures, DTC mails an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts the securities are credited on the record date as identified in a listing attached to the omnibus proxy.
 
Global securities will be exchangeable for corresponding certificated securities registered in the name of persons other than DTC or its nominee if (1) DTC (a) notifies us that it is unwilling or unable to continue as depository for any of the global securities or (b) at any time ceases to be a clearing agency registered under the Exchange Act, (2) an event of default occurs and is continuing with respect to the applicable series of securities or (3) we execute and deliver to the applicable trustee an order that the global securities will be so exchangeable.
 
 
29
 
 
The information in this section concerning DTC and DTC’s book-entry system has been obtained from DTC, and we and any underwriters, dealers or agents are not responsible for the accuracy of the information or for the performance by DTC of its obligations under the rules and procedures governing its operations or otherwise.
 
Any underwriters, dealers or agents of any debt securities may be direct participants of DTC.
 
PLAN OF DISTRIBUTION
 
We may sell the offered securities (a) through agents; (b) through underwriters or dealers; (c) directly to one or more purchasers; or (d) through a combination of any of these methods of sale.  We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in a prospectus supplement.
 
LEGAL OPINIONS
 
Unless otherwise indicated in the applicable prospectus supplement, legal opinions relating to the validity of the securities being offered by this prospectus will be rendered by our counsel, Scott M. Wilensky, Minneapolis, Minnesota.  Unless otherwise indicated in the applicable prospectus supplement, certain other legal matters will be passed upon for us by Jones Day, Chicago, Illinois.   Unless otherwise indicated in the applicable prospectus supplement, certain legal matters will be passed upon for the underwriters, dealers or agents named in the prospectus supplement by Hunton & Williams LLP, New York, New York. Scott M. Wilensky is our Senior Vice President and General Counsel and is the beneficial owner of less than 1% of our common stock.
 
EXPERTS
 
The consolidated financial statements, and the related financial statement schedules, incorporated in this prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 and the effectiveness of the Company’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports which are incorporated herein by reference. Such consolidated financial statements and financial statement schedules have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
 
 
30
 
 
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
ITEM 14.
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
 
   
Amount to
Be Paid
 
SEC Registration fee
  $ *  
Accountants’ Fees and Expenses
    **  
Counsel’s Fees and Expenses
    **  
Trustees’ Fees and Expenses, including Counsel and Authentication Fees
    **  
Printing Fees and Expenses
    **  
Rating Agencies’ Fees
    **  
Listing Fees
    **  
Miscellaneous fees and expenses
    **  
Total
  $ **  
____________________
 
*  Under Rules 456(b) and 457(r) of the Securities Act, the SEC registration fee will be paid at the time of any particular offering of securities under this registration statement and is therefore not currently determinable.
 
** Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are therefore not currently determinable.
 
ITEM 15.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
 
Section 302A.521 of the Minnesota BCA requires indemnification of officers and directors of domestic or foreign corporations under certain circumstances and subject to certain limitations. Pursuant to authorization contained in our Articles, our Bylaws contain provisions for indemnification of its directors and officers consistent with the provisions of Section 302A.521 of the Minnesota BCA.

We have obtained insurance policies indemnifying us and our directors and officers against certain civil liabilities and related expenses

ITEM 16.
EXHIBITS.
 
Exhibit
Number
 
Description of Document
1.01
 
Form of Underwriting Agreement relating to senior debt securities, subordinated debt securities or junior subordinated debt securities.
1.02
 
Form of Underwriting Agreement relating to common stock.
+1.03
 
Form of Underwriting Agreement or Purchase Agreement for Preferred Stock, Depositary Shares, Warrants, Rights, Purchase Contracts or Units.
*3.01
 
Amended and Restated Articles of Incorporation of Xcel Energy as amended and restated on May 16, 2012. (Exhibit 3.01 to Xcel Energy’s Form 8-K dated May 16, 2012 (File No. 001-03034)).
*3.02
 
Restated Bylaws of Xcel Energy (Exhibit 3.01 to Xcel Energy’s Form 8-K dated August 12, 2008 (File No. 001-03034)).
*4.01
 
Indenture dated December 1, 2000 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee.  (Exhibit 4.01 to Xcel Energy’s Form 8-K Report (File No. 001-03034) dated December 18, 2000).
*4.02
 
Supplemental Indenture dated December 15, 2000 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee, supplementing Indenture dated December 1, 2000.  (Exhibit 4.02 to Xcel Energy’s Form 8-K Report (File No. 001-03034) dated December 18, 2000).
 
 
II-1
 
 
*4.03
 
Supplemental Indenture No. 2 dated June 15, 2003 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee, supplementing Indenture dated December 1, 2000.  (Exhibit 4.01 to Xcel Energy’s Form 10-Q Report (File No. 001-03034) dated August 15, 2003).
*4.04
 
Supplemental Indenture No. 3 dated June 1, 2006 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $300 million principal amount of 6.5 percent Senior Notes, Series due 2036 (Exhibit 4.01 to Current Report on Form 8-K (File No. 001-03034) dated June 6, 2006).
*4.05
 
Supplemental Indenture No. 4 dated March 30, 2007 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $253.979 million aggregate principal amount of 5.613 percent Senior Notes, Series due 2017 (Exhibit 4.1 to Form 8-K (File No. 001-03034) dated March 30, 2007).
*4.06
 
Supplemental Indenture No. 5 dated as of May 1, 2010 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $550 million principal amount of 4.70 percent Senior Notes, Series due May 15, 2020 (Exhibit 4.01 to Form 8-K (File No. 001-03034) dated May 13, 2010).
*4.07
 
Supplemental Indenture No. 6 dated as of Sept. 1, 2011 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $250 million principal amount of 4.80 percent Senior Notes, Series due 2041.  (Exhibit 4.01 to Form 8-K dated Sept. 12, 2011 (File No. 001-03034)).
*4.08
 
Form of Supplemental Indenture for each series of senior debt securities. (Exhibit 4.04 to Registration Statement on Form S-3 (File no. 333-134660) dated June 1, 2006).
*4.09
 
Junior Subordinated Indenture, dated as of January 1, 2008, by and between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee (Exhibit 4.01 to Form 8-K (File No. 001-03034) dated January 16, 2008).
*4.10
 
Supplemental Indenture No. 1, dated January 16, 2008, by and between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $400 million principal amount of 7.6 percent Junior Subordinated Notes, Series due 2068 (Exhibit 4.02 to Form 8-K (File No. 001-03034) dated Jan. 16, 2008).
*4.11
 
Replacement Capital Covenant, dated January 16, 2008 (Exhibit 4.03 to Form 8-K (File No. 001-03034) dated Jan. 16, 2008).
*4.12
 
Form of Supplemental Indenture for each series of junior subordinated debt securities (Exhibit 4.09 to Registration Statement on Form S-3 (File no. 001-161521) dated August 24, 2009).
4.13
 
Form of Subordinated Indenture.
4.14
 
Form of Supplemental Indenture for each series of subordinated debt securities
+4.15
 
Form of Preferred Security.
+4.16
 
Form of Depositary Agreement
+4.17
 
Form of Purchase Contract.
+4.18
 
Form of Warrant.
+4.19
 
Form of Rights Certificate.
+4.20
 
Form of Unit.
5.01
 
Opinion of Scott M. Wilensky as to the legality of the securities.
12.01
 
Statement of computation of ratio of earnings to fixed charges.
23.01
 
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
23.02
 
Consent of Scott M. Wilensky, included in Exhibit 5.01 hereto.
24.01
 
Power of Attorney.
25.01
 
Form T-1 Statement of Eligibility of Wells Fargo Bank, National Association to act as Trustee under the Senior Indenture and the Junior Subordinated Indenture.
#25.02
 
Form T-1 Statement of Eligibility of Trustee under the Subordinated Indenture.
____________________
 
* 
Indicates incorporation by reference.
 
+
To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable.
 
#
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
 
II-2
 
ITEM 17. 
UNDERTAKINGS.
 
The undersigned registrant hereby undertakes:
 
(a)
 
(1)           To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i)           To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
 
(ii)          To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(iii)         To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
provided, however , that paragraphs (i), (ii) and (iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
 
(2)           That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3)           To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4)           That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(i)           Each prospectus filed by the registrant pursuant to 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
 
(ii)          Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus.  As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.  Provided however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
 
 
II-3
 
 
(5)           That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
(i)           Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii)          Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
 
(iii)         The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv)         Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(b)  That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c)  If applicable, to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof.  If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
 
(d)  Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
 
(e)  To file, if applicable, an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939.
 
 
II-4
 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, and State of Minnesota, on the 24th day of August, 2012.

 
XCEL ENERGY INC.
     
 
By:
/s/ Teresa S. Madden
   
Teresa S. Madden
   
Senior Vice President and Chief Financial Officer

 
II-5
 

Pursuant to the requirements of the Securities Exchange Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 
Signature
     
Title
     
Date
 
         
*
 
Chairman of the Board, President,
 
August 24, 2012
Benjamin G. S. Fowke III
 
Chief Executive Officer and Director
   
         
/s/ Teresa S. Madden
 
Senior Vice President and
 
August 24, 2012
Teresa S. Madden
 
Chief Financial Officer
   
         
/s/ Jeffery S. Savage
 
Vice President and Controller
 
August 24, 2012
Jeffery S. Savage
       
         
*
 
Director
 
August 24, 2012
Gail Koziara Boudreaux
       
         
*
 
Director
 
August 24, 2012
Fredric W. Corrigan
       
         
*
 
Director
 
August 24, 2012
Richard K. Davis
       
         
*
 
Director
 
August 24, 2012
Albert F. Moreno
       
         
*
 
Director
 
August 24, 2012
Richard T. O’Brien
       
         
*
 
Director
 
August 24, 2012
Christopher J. Policinski
       
         
*
 
Director
 
August 24, 2012
A. Patricia Sampson
       
         
*
 
Director
 
August 24, 2012
James J. Sheppard
       
         
*
 
Director
 
August 24, 2012
David A. Westerlund
       
         
*
 
Director
 
August 24, 2012
Kim Williams
       
         
*
 
Director
 
August 24, 2012
Timothy V. Wolf
       


*By:
     /s/ Teresa S. Madden
 
 
(Attorney-in-Fact)
 
 
August 24, 2012
 

 
II-6
 
 
EXHIBIT INDEX

Exhibit
Number
 
Description of Document
 
Form of Underwriting Agreement relating to senior debt securities, subordinated debt securities or junior subordinated debt securities.
 
Form of Underwriting Agreement relating to common stock.
+1.03
 
Form of Underwriting Agreement or Purchase Agreement for Preferred Stock, Depositary Shares, Warrants, Rights, Purchase Contracts or Units.
*3.01
 
Amended and Restated Articles of Incorporation of Xcel Energy as amended and restated on May 16, 2012. (Exhibit 3.01 to Xcel Energy’s Form 8-K dated May 16, 2012 (File No. 001-03034)).
*3.02
 
Restated Bylaws of Xcel Energy (Exhibit 3.01 to Xcel Energy’s Form 8-K dated August 12, 2008 (File No. 001-03034)).
*4.01
 
Indenture dated December 1, 2000 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee. (Exhibit 4.01 to Xcel Energy’s Form 8-K Report (File No. 001-03034) dated December 18, 2000).
*4.02
 
Supplemental Indenture dated December 15, 2000 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee, supplementing Indenture dated December 1, 2000. (Exhibit 4.02 to Xcel Energy’s Form 8-K Report (File No. 001-03034) dated December 18, 2000).
*4.03
 
Supplemental Indenture No. 2 dated June 15, 2003 between Xcel Energy and Wells Fargo Bank, National Association, as Trustee, supplementing Indenture dated December 1, 2000. (Exhibit 4.01 to Xcel Energy’s Form 10-Q Report (File No. 001-03034) dated August 15, 2003).
*4.04
 
Supplemental Indenture No. 3 dated June 1, 2006 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $300 million principal amount of 6.5 percent Senior Notes, Series due 2036 (Exhibit 4.01 to Current Report on Form 8-K (File No. 001-03034) dated June 6, 2006).
*4.05
 
Supplemental Indenture No. 4 dated March 30, 2007 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $253.979 million aggregate principal amount of 5.613 percent Senior Notes, Series due 2017 (Exhibit 4.1 to Form 8-K (File No. 001-03034) dated March 30, 2007).
*4.06
 
Supplemental Indenture No. 5 dated as of May 1, 2010 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $550 million principal amount of 4.70 percent Senior Notes, Series due May 15, 2020 (Exhibit 4.01 to Form 8-K (File No. 001-03034) dated May 13, 2010).
*4.07
 
Supplemental Indenture No. 6 dated as of Sept. 1, 2011 between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $250 million principal amount of 4.80 percent Senior Notes, Series due 2041. (Exhibit 4.01 to Form 8-K dated Sept. 12, 2011 (File No. 001-03034)).
*4.08
 
Form of Supplemental Indenture for each series of senior debt securities. (Exhibit 4.04 to Registration Statement on Form S-3 (File no. 333-134660) dated June 1, 2006).
*4.09
 
Junior Subordinated Indenture, dated as of January 1, 2008, by and between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee (Exhibit 4.01 to Form 8-K (File No. 001-03034) dated January 16, 2008).
*4.10
 
Supplemental Indenture No. 1, dated January 16, 2008, by and between Xcel Energy Inc. and Wells Fargo Bank, National Association, as Trustee, creating $400 million principal amount of 7.6 percent Junior Subordinated Notes, Series due 2068 (Exhibit 4.02 to Form 8-K (File No. 001-03034) dated Jan. 16, 2008).
*4.11
 
Replacement Capital Covenant, dated January 16, 2008 (Exhibit 4.03 to Form 8-K (File No. 001-03034) dated Jan. 16, 2008).
*4.12
 
Form of Supplemental Indenture for each series of junior subordinated debt securities (Exhibit 4.09 to Registration Statement on Form S-3 (File no. 001-161521) dated August 24, 2009).
 
 
 
 
 
 
Form of Subordinated Indenture.
 
Form of Supplemental Indenture for each series of subordinated debt securities
+4.15
 
Form of Preferred Security.
+4.16
 
Form of Depositary Agreement
+4.17
 
Form of Purchase Contract.
+4.18
 
Form of Warrant.
+4.19
 
Form of Rights Certificate.
+4.20
 
Form of Unit.
 
Opinion of Scott M. Wilensky as to the legality of the securities.
 
Statement of computation of ratio of earnings to fixed charges.
 
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
23.02
 
Consent of Scott M. Wilensky, included in Exhibit 5.01 hereto.
 
Power of Attorney.
 
Form T-1 Statement of Eligibility of Wells Fargo Bank, National Association to act as Trustee under the Senior Indenture and the Junior Subordinated Indenture.
#25.02
 
Form T-1 Statement of Eligibility of Trustee under the Subordinated Indenture.
____________________
 
* 
Indicates incorporation by reference.
 
+
To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable.
 
#
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
 

Exhibit 1.01
 
XCEL ENERGY INC.
(a Minnesota corporation)
 
FORM OF
 
UNDERWRITING AGREEMENT
 
$[___________]
[Senior Debt Securities][Subordinated Debt Securities]
[Junior Subordinated Debt Securities]
 
[___________]
 
[Underwriters]

Ladies and Gentlemen:

Xcel Energy Inc., a Minnesota corporation (the “ Company ”), proposes to sell to the underwriters named in Schedule I hereto (the “ Underwriters ”) an aggregate of $[______]  principal amount of its [Senior Debt Securities][ Subordinated Debt Securities][Junior Subordinated Debt Securities] (the “ Securities ”) to be issued under its Indenture, dated as of [______], from the Company to [_______________], as trustee (the “ Trustee ”), as previously supplemented and as to be supplemented by a supplemental indenture relating to the Securities (such Indenture as so supplemented 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 ”) an “automatic shelf registration statement” as defined under Rule 405 under the Act, including a prospectus, for the registration under the Act of the Securities, which registration statement initially became effective not earlier than three years prior to the date hereof.  Such registration statement (File No. 333-[______]) 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 [______] 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 Securities 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 relating to the Securities 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 Securities;
 
(v)            “ Preliminary Prospectus ” means any preliminary form of prospectus supplement relating to the Securities (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 and the pricing terms of the offering of the Securities and the terms and conditions of the Securities 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 Securities, 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 Prospectus, any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement and all exhibits to such registration statement.
 
Any reference herein to the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated or deemed 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 documents pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Securities 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)           As of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date.
 
(c)            No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or the Registration Statement has been issued by the Commission and no proceeding for that purpose has been initiated or threatened by the Commission; and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company.
 
(d)            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 and will not, as of the Effective Date, 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, as of the date of the Prospectus and as of 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 any Underwriter specifically for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g).  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.
 
(e)            The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Act or 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 or any further amendment or supplement to the Prospectus will, when they are filed with the Commission, conform in all material respects to the requirements of the Act or 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.
 
 
3
 
 
(f)             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 any Underwriter specifically for use in the Pricing Disclosure Package, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g) hereof.
 
(g)           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 Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of the Underwriters; the Final Term Sheet and any such Issuer Free Writing Prospectus the use of which have been consented to by the Company and the Underwriters are 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 Securities 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; provided that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with the information furnished to the Company by any Underwriter expressly for use therein, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g).
 
(h)            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.
 
 
4
 
 
(i)             The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota; and the Company is qualified to do business as a foreign corporation and is in good standing under the laws of each 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 the title to property material to its operations or its right to enforce a material contract against others or expose it to substantial liability, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise) of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”).
 
(j)             Each of Northern States Power Company, a Minnesota corporation, Northern States Power Company, a Wisconsin corporation, Public Service Company of Colorado, and Southwestern Public Service Company (each a “ Significant Subsidiary ” and collectively, “ Significant Subsidiaries ”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be in good standing or qualified would not, individually or in the aggregate, have a Material Adverse Effect.  There are no other subsidiaries of the Company that would be deemed “significant subsidiaries” under Rule 1-02 of Regulation S-X under the Exchange Act.
 
(k)            Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus.
 
(l)             Neither the execution and delivery of this Agreement and the Indenture, the issuance and delivery of the Securities, 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 Securities and the Indenture will (i) conflict with, or result in the breach of, any of the terms, provisions or conditions of the Amended and Restated Articles of Incorporation or Bylaws of the Company, or (ii) 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 upon any property or assets of the Company or any of its Significant Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other contract, agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any its Significant Subsidiaries is bound or to which its or their properties are subject or (iii) result in the violation of any law, statute, order, rule or regulation applicable to the Company or any of its Significant Subsidiaries of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its Significant Subsidiaries or over their respective properties except, in the case of clauses (ii) or (iii), any such conflict, breach or violation which, if it did exist, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
 
5
 
 
(m)           The Securities 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 general equitable principles, and will be entitled to the benefits of the Indenture.
 
(n)            The Indenture has been duly 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 and general equitable principles.
 
(o)            This Agreement has been duly authorized, executed and delivered by the Company.
 
(p)            No 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, necessary in connection with the issuance and sale of the Securities 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 or regulations of the Financial Industry Regulatory Authority (“ FINRA ”).
 
(q)            Other than as set forth or contemplated in the most recent Preliminary Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party which would reasonably be expected to have a Material Adverse Effect; and, to the best of the Company’s knowledge, there are no proceedings that are threatened or contemplated by governmental authorities or threatened by others that are required to be described in the most recent Preliminary Prospectus which are not described as required.
 
(r)             The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the most recent Preliminary Prospectus and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).
 
 
6
 
 
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 Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price of [______]% of the principal amount thereof, plus accrued interest, if any, from [______] to the Closing Date hereunder, the principal amount of Securities 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 Securities 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, none of the Underwriters is advising the Company or any other person as to any legal, tax, 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 Securities shall be made at [____]:[___], [a.m.][p.m.], New York City time, on [______], at the offices of [__________________] (the “ Closing Location ”), which date and time may be postponed by agreement between the Underwriters and the Company (such date and time being herein called the “ Closing Date ”).  Delivery of the Securities shall be made to [______] for the respective accounts of the several Underwriters against payment by the several Underwriters through [______] 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 [______] by causing The Depository Trust Company (“ DTC ”) to credit the Securities to the account of [______] at DTC.  The Securities will be delivered in definitive registered form except that, if for any reason the Company is unable to deliver the Securities in definitive form, the Company reserves the right, as provided in the Indenture, to make delivery in temporary form.  Any Securities delivered in temporary form will be exchangeable without charge for Securities in definitive form.  The Securities will be registered in the name of Cede & Co., as nominee of DTC and will be made available to the Underwriters 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.
 
4.              Agreements of the Company .  The Company agrees with the several Underwriters that:
 
 
7
 
 
(a)            The Company will cause the Prospectus, in a form approved by the Underwriters, to be filed pursuant to Rule 424(b) under the Act and will notify the Underwriters promptly of such filing.  The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Securities and of the offering, and will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Underwriters promptly of such filing.  During the period for which a prospectus relating to the Securities 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 Underwriters (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 Underwriters 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 the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the suspension of the qualification of the Securities 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 Securities 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 Underwriters a copy for your review prior to filing and will not file any such proposed amendment or supplement to which the Underwriters reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Underwriters 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 Underwriters as to any comments which the Underwriters make in a timely manner with respect to such document.  During the period for which a prospectus relating to the Securities 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 Securities.  Following the Closing Date and, for as long as a prospectus relating to the Securities is required to be delivered under the Act, in the event of the issuance 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, 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 Securities by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement).
 
 
8
 
 
(b)           If, at any time when a prospectus relating to the Securities 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 Pricing Disclosure Package or 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters, the Company has not made and will not make any offer relating to the Securities 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 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 Pricing Disclosure Package 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 Underwriters and, upon their request, file such document and prepare and furnish without charge to each Underwriter as many copies as the Underwriters 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.
 
 
9
 
 
(g)           The Company will furnish such information, execute such instruments and take such action as may be required to qualify the Securities for sale under the laws of such jurisdictions in the United States as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; 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 Securities are outstanding, the Company will furnish (or cause to be furnished) to each of the Underwriters, upon request, copies of 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 Underwriters, which consent shall not be unreasonably withheld.
 
(j)             In connection with the offering of the Securities, until the Underwriters shall have notified the Company of the completion of the sale of the Securities, 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 Securities or attempt to induce any person to purchase any Securities or (ii) make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Securities.
 
(k)            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 result in stabilization or manipulation, of the price of any security of the Company in connection with the offering of the Securities.
 
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.
 
 
10
 
 
(b)           It will, pursuant to reasonable procedures developed in good faith, retain, as and to the extent required under Rule 433 under the  Act, copies of each free writing prospectus used or referred to by it, in accordance with Rule 433.
 
(c)            It will notify [______] when it has completed the sale of the Securities and [______], in turn, will notify the Company when the sale of the Securities has been completed.
 
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 Securities 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 not to exceed $[______]) incurred in connection with “blue sky” qualifications and the rating of the Securities, 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 FINRA.  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 Securities shall be subject, in the discretion of the Underwriters, 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 hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
 
 
11
 
 
(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 Underwriters; 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; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
 
(b)           The Underwriters shall be furnished with opinion letters, dated the Closing Date, of [______], [______] of the Company, that address substantially the matters set forth in Exhibit A , and [______], counsel for the Company, that address substantially the matters set forth in Exhibit B .
 
(c)           The Underwriters shall have received from [______], counsel for the Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
 
(d)           The Company shall have furnished to the Underwriters a certificate of the President or any Senior Vice President or Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
 
(i)           the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
 
(ii)           there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
 
 
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(e)            The Underwriters shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Underwriters) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that:  (A)(1) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
 
 
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(f)             Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated by the Pricing Disclosure Package.
 
(g)            Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
 
(h)            Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business,  otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, the effect of which is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Prospectus.
 
(i)             No Underwriter shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
 
(j)             No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
 
 
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(k)           All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Underwriters such other customary information, certificates and documents as they may reasonably request.
 
(l)             The Company and Trustee shall have entered into the supplemental indenture relating to the Securities, and the Underwriters shall have received counterparts, conformed as executed thereof, and the Securities shall have been duly executed and delivered by the Company and authenticated by the Trustee.
 
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Underwriters and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters.  Notice of such cancellation shall be given to the Company in writing, or by telephone, telegraph or facsimile transmission confirmed in writing.
 
8.              Conditions of Company’s Obligations .  The obligations of the Company to sell and deliver the Securities are subject to the condition that prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, threatened and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company.
 
If this condition shall not have been fulfilled, this Agreement and all obligations of the Company hereunder may be cancelled on or at any time prior to the Closing Date by the Company.  Notice of such cancellation shall be given to the Underwriters in writing or by telephone or facsimile transmission confirmed in writing.
 
9.              Reimbursement of Underwriters’ Expenses .  If the sale of the Securities provided for herein is not consummated because (i) this Agreement is terminated pursuant to Section 12, (ii) any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or (iii) of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof, other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Securities, including the reasonable fees and disbursements of counsel for the Underwriters.
 
 
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10.            Indemnification .
 
(a)            The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), or any Issuer Free Writing Prospectus (or amendment or supplement thereto) or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein.
 
(b)            Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the information identified in Section 10(g) hereof as being provided by the Underwriters.
 
 
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(c)            If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “ Indemnified Person ”) shall promptly notify the person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 10 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 10.  If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person, which may be counsel to the Indemnifying Person, to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 10 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding as incurred.  In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred.  Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Underwriters and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company.  The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.  No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
 
 
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(d)           If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities.  The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
 
(e)            The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.  The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim.  Notwithstanding the provisions of this Section 10, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations to contribute pursuant to this Section 10 are several in proportion to their respective purchase obligations hereunder and not joint.
 
(f)            The remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
 
(g)           The Underwriters severally confirm and the Company acknowledges that the statements with respect to the offering of the Securities by the Underwriters set forth in the [_________________________] paragraphs in the section entitled “[Underwriting]” in the prospectus supplement that is a part of the Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus.
 
 
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11.            Default by an Underwriter .
 
(a)            If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder (in this Section called the “ Unpurchased Securities ”), the non-defaulting Underwriters may in their discretion arrange for themselves or another party or other parties to purchase such Unpurchased Securities on the terms contained herein.  If within 36 hours after such default by any Underwriter the non-defaulting Underwriters do not arrange for the purchase of such Unpurchased Securities, then the Company shall be entitled to a further period of 36 hours within which to procure another party or other parties satisfactory to the non-defaulting Underwriters to purchase such Unpurchased Securities on such terms.  In the event that, within the respective prescribed period, the non-defaulting Underwriters notify the Company that they have so arranged for the purchase of such Unpurchased Securities, or the Company notifies the non-defaulting Underwriters that it has so arranged for the purchase of such Unpurchased Securities, such Underwriters or the Company shall have the right to postpone the Closing Date for such Unpurchased Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the non-defaulting Underwriters may thereby be made necessary.  The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Unpurchased Securities.
 
(b)           If, after giving effect to any arrangements for the purchase of the Unpurchased Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in subsection (a) above, the aggregate principal amount of such Unpurchased Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Unpurchased Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
 
(c)            If, after giving effect to any arrangements for the purchase of the Unpurchased Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in subsection (a) above, the aggregate principal amount of Unpurchased Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Unpurchased Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
 
 
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12.            Termination .  This Agreement shall be subject to termination in the absolute discretion of the Underwriters, by notice given to the Company prior to delivery of and payment for all Securities, if prior to such time (i) trading shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market, (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities clearance or settlement services shall have occurred or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Underwriters, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement and the Prospectus.
 
13.            Representations and Indemnities to Survive Delivery .  The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of their respective officers, directors or controlling persons within the meaning of the Act, and will survive delivery of and payment for the Securities.  The provisions of Sections 6, 9 and 10 hereof shall survive the termination or cancellation of this Agreement.
 
14.            Notices .  All communications hereunder will be in writing and, (i) if sent to the Underwriters, will be mailed, delivered or transmitted and confirmed to them in care of [______], [______], Attention: [______] (fax: [______]), [______], [______], Attention: [______] (fax: [______]) and [______], [______], Attention: [______] (fax: [______]), or, (ii) if sent to the Company, will be mailed, delivered or transmitted and confirmed to it at 414 Nicollet Mall, Minneapolis, Minnesota 55401, Attention: Vice President and Treasurer (fax:  [______]).  All communications shall take effect at the time of receipt thereof.
 
15.            Patriot Act.   In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
 
 
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16.            Persons Entitled to Benefit of Agreement .  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 10 hereof, and the affiliates of each Underwriter referred to in Section 10 hereof.  Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.  No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
 
17.            Applicable Law .  This Agreement will be governed by and construed in accordance with the laws of the State of New York.
 
18.            Counterparts .  This Agreement may be executed in counterparts, all of which, taken together, shall constitute a single agreement among the parties to such counterparts.
 
19.            Amendment and Waiver .  No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
 
20.            Other .  Time shall be of the essence for all purposes of this Agreement.  As used herein, “business day” shall mean any day other than a day on which banks are permitted or required to be closed in New York City.
 
(remainder of page intentionally blank)
 
 
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
 
 
Very truly yours,
   
 
XCEL ENERGY INC.
 
(a Minnesota corporation)
   
  By:
 
 
Name:
 
Title:
 
 
 
 
 
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
 
[UNDERWRITERS]
 
By:    
Name:  
Title:  
   
As Underwriters  
 
 
 
 
 
SCHEDULE I
 
Name
 
Amount
 
    $    
         
Total
  $    

 
I-1
 

SCHEDULE II
 
Final Term Sheet / Issuer Free Writing Prospectus
 
1.              Free Writing Prospectus, dated the date of the Underwriting Agreement, relating to the Securities and filed with the Commission pursuant to Rule 433(d) of the Act.
 
 
II-1
 
 
EXHIBIT A
 
Matters to be addressed by Company counsel
 
1.              The Company has been duly incorporated and is a corporation existing and in good standing under the laws of the State of Minnesota; and is qualified to do business as a foreign corporation under the laws of the states of North Dakota, South Dakota and Colorado;
 
2.              Each Significant Subsidiary of the Company has been duly incorporated and is a corporation existing and in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each 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;
 
3.              The Agreement has been duly authorized, executed and delivered by the Company;
 
4.              The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms;
 
5.              The issuance of the Securities in accordance with the terms of the Indenture and the sale and delivery thereof pursuant to the provisions of the Agreement have been duly authorized by the Company;  and the Securities have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and, upon payment and delivery in accordance with the Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture;
 
6.              Neither the execution, delivery or performance of the Indenture or the Agreement, the issuance and delivery of the Securities nor the compliance by the Company with all the terms and provisions of the Indenture and the Agreement will result in a breach or violation of any of the terms or provisions of, or constitute a default under, (a) any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its Significant Subsidiaries is bound or to which any of their respective properties or assets are subject and of which I have Actual Knowledge, or (b) the Amended and Restated Articles of Incorporation or Bylaws of the Company, or (c) any United States Federal statute, rule or regulation that is part of a regulatory scheme specifically applicable to business organizations engaged in the type of regulated business activities conducted by the Company or any of its Significant Subsidiaries (“Specified U.S. Federal Law”) or, to my Actual Knowledge, any order of any court or of any Federal or state regulatory body or administrative agency or other governmental body that specifically names the Company or any of its Significant Subsidiaries or any of their properties except, in the case of clauses (a) or (c), any such breach, violation or default which, if it did exist, would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise) of the Company and its Significant Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business;
 
 
A-1
 
 
7.              No further approval, authorization, consent, certificate or order of, or filing or registration with, any United States governmental body, federal, state or other, is required under Specified U.S. Federal Law in connection with the issuance and sale of the Securities by the Company as provided in the Agreement, the Pricing Disclosure Package and the Prospectus, except as may be required by state securities laws;
 
8.              To my Actual Knowledge, there are no legal or governmental proceedings involving the Company or its subsidiaries required to be described in the Pricing Disclosure Package or the Prospectus which are not described as required.
 
I, or other attorneys in the Company’s Law Department at my request, have participated in the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus includes the documents incorporated in or deemed to be incorporated therein pursuant to Item 12 of Form S-3 under the Act (collectively, such incorporated documents, the “Exchange Act Documents”). From time to time, I, or other attorneys in the Company’s Law Department at my request, have had discussions with certain officers, directors and employees of the Company, with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined the financial statements of the Company included in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, with the Underwriters and with counsel to the Underwriters concerning the information contained in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and the responses to various items in Form S-3. I have not independently verified and am not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus. Based solely on my participation (and the participation of other attorneys in the Company’s Law Department at my request) and discussions described above, however, no facts have come to my attention that cause me to believe that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Act), as of [___________] (which is the date you have identified as the earlier of the date the Prospectus was first used or the date of the first contract of sale of any Bonds), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Pricing Disclosure Package, as of [___] p.m., New York City time, on [___________] (which is the time that you have informed us was prior to the first contract of sale of any Bonds by the Underwriters), included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus, as of its date or as of the date hereof, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case I express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein, (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
 
A-2
 
 
EXHIBIT B
 
Matters to be addressed by opinion of Company Counsel
 
1.              No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court of the United States or the State of New York is required in connection with the issuance or sale of the Securities by the Company to the Underwriters, except (i) as may be required under state securities or “blue sky” laws and (ii) such as have been obtained or made under the Securities Act of 1933 (the “Securities Act”), the Securities Exchange Act of 1934 or the Trust Indenture Act of 1939 (the “Trust Indenture Act”).
 
2.              The (i) execution, delivery and performance of (A) the Indenture by the Company and (B) the Underwriting Agreement by the Company, (ii) issuance and sale of the Securities by the Company and (iii) compliance with the terms and provisions thereof by the Company will not violate any law or regulation known to us to be generally applicable to transactions of this type (other than federal and state securities or “blue sky” laws, as to which no opinion is expressed in this paragraph), or any order or decree of any court, arbitrator or governmental agency that is binding upon the Company or any of its Significant Subsidiaries or any of their properties or any agreement to which the Company or any of its Significant Subsidiaries is a party or bound (this opinion being limited (i) to those orders and decrees identified on Exhibit A attached hereto and to those agreements identified on Exhibit B attached hereto, and (ii) in that we express no opinion with respect to any violation or default (a) not readily ascertainable from the face of any such order, decree or agreement, (b) arising under or based upon any cross default provision insofar as it relates to a violation of or default under an agreement not identified on Exhibit B attached hereto or (c) arising as a result of any violation of or default under any agreement or covenant by failure to comply with any financial or numerical requirement requiring computation).
 
3.              The statements contained in the Pricing Disclosure Package and the Prospectus under the captions “Supplemental Description of the Senior Debt Securities” and “Description of the Senior Debt Securities,” insofar as such statements purport to summarize provisions of the documents referred to therein, present fair summaries of such documents in all material respects;
 
4.              The Company is not required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940.
 
 
B-1
 
 
We have participated in the preparation of the Company’s registration statement on Form S-3 (Registration No. 333-[______]) (the “Registration Statement”), the prospectus dated [______] (the “Base Prospectus”), the preliminary prospectus supplement dated [______] (together with the Base Prospectus, the “Preliminary Prospectus”), the Final Term Sheet (together with the Preliminary Prospectus, the “Pricing Disclosure Package”) and the prospectus supplement, dated [______] (together with the Base Prospectus, the “Prospectus”).  Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus includes the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act.  From time to time, we have had discussions with certain officers and employees of the Company, with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined the financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, with the Underwriters and with counsel to the Underwriters concerning the information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and the responses to various items in Form S-3.  Based upon our participation and discussions described above, we are of the view that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Securities Act), as of [______], which is the date you have identified as the earlier of the date the Prospectus was first used or the date of the first contract of sale of any Securities (such date, the “Effective Date”), and the Prospectus, as of its date, complied as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder, except that we express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein or (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
We have not independently verified and are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness (except as and to the extent set forth in paragraph 3 above) of the information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus.  Based on our participation and discussions described above, however, no facts have come to our attention that cause us to believe that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Securities Act), as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Pricing Disclosure Package, as of [______] p.m., New York City time, on [______], (which is the time that you have informed us was prior to the first contract of sale of any Securities by the Underwriters), included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus, as of its date and as of the date hereof, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein or (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
The Registration Statement has become effective under the Securities Act, and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending or threatened by the Commission.  The Indenture has been qualified under the Trust Indenture Act.
 
 
  B-2
Exhibit 1.02

XCEL ENERGY INC.
(a Minnesota corporation)
 
FORM OF
 
UNDERWRITING AGREEMENT
 
COMMON STOCK
(PAR VALUE $2.50 PER SHARE)
 [___________]
 
[Underwriters]

Ladies and Gentlemen:

Xcel Energy Inc., a Minnesota corporation (the “ Company ”), proposes to sell to the underwriters named in Schedule I hereto (the “ Underwriters ”) an aggregate of [______]  (the “ Firm Shares ”) and at the election of the Underwriters an aggregate of  [______]   additional shares (the “ Option Shares ”) of common stock, par value $2.50 per share, of the Company (the “ Common Stock ”).  The Firm Shares and the Option Shares that the Underwriters elect to purchase pursuant to Section 2 are hereinafter collectively called the “ Shares .”
 
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 ”) an “automatic shelf registration statement” as defined under Rule 405 under the Act, including a prospectus, for the registration under the Act of the Shares, which registration statement initially became effective not earlier than three years prior to the date hereof.  Such registration statement (File No. 333-[______]) 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 [______] 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 Shares 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 relating to the Shares 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 Shares;
 
(v)            “ Preliminary Prospectus ” means any preliminary form of prospectus supplement relating to the Shares (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 and the pricing terms of the offering of the Shares and the terms and conditions of the Shares 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 Shares, 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 Prospectus, any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement and all exhibits to such registration statement.
 
Any reference herein to the Registration Statement, the Pricing Disclosure Package, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated or deemed 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 documents pursuant to the Exchange Act after the date of this Agreement and prior to the termination of the offering of the Shares 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).
 
 
2
 
 
(b)           As of the determination date applicable to the Registration Statement (and any amendment thereof) and the offering contemplated hereby, the Company is a “well-known seasoned issuer” (as defined in Rule 405 under the Act) eligible to use Form S-3 for the offering of the Shares, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date.
 
(c)           No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or the Registration Statement has been issued by the Commission and no proceeding for that purpose has been initiated or threatened by the Commission; and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company.
 
(d)           The Registration Statement, on the Effective Date, complied in all material respects with the requirements of the Act and the respective rules and regulations of the Commission thereunder and did not and will not, as of the Effective Date, 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, as of the date of the Prospectus and as of 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 a Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939 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 any Underwriter specifically for use in the Registration Statement or Prospectus, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g).  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.
 
(e)           The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Act or 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 or any further amendment or supplement to the Prospectus will, when they are filed with the Commission, conform in all material respects to the requirements of the Act or 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.
 
 
3
 
 
(f)            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 a Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939 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 any Underwriter specifically for use in the Pricing Disclosure Package, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g) hereof.
 
(g)           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 Shares that would constitute an Issuer Free Writing Prospectus without the prior consent of the Underwriters; the Final Term Sheet and any such Issuer Free Writing Prospectus the use of which have been consented to by the Company and the Underwriters are 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 Shares 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; provided that this representation and warranty shall not apply to statements or omissions made therein in reliance upon and in conformity with the information furnished to the Company by any Underwriter expressly for use therein, it being understood and agreed that the only such information so furnished consists of the information described in Section 10(g).
 
(h)           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.
 
 
4
 
 
(i)            The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota; and the Company is qualified to do business as a foreign corporation and is in good standing under the laws of each 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 the title to property material to its operations or its right to enforce a material contract against others or expose it to substantial liability, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise) of the Company and its subsidiaries taken as a whole (a “ Material Adverse Effect ”).
 
(j)            Each of Northern States Power Company, a Minnesota corporation, Northern States Power Company, a Wisconsin corporation, Public Service Company of Colorado, and Southwestern Public Service Company (each a “ Significant Subsidiary ” and collectively, “ Significant Subsidiaries ”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be in good standing or qualified would not, individually or in the aggregate, have a Material Adverse Effect.  There are no other subsidiaries of the Company that would be deemed “significant subsidiaries” under Rule 1-02 of Regulation S-X under the Exchange Act.
 
(k)           Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus.
 
(l)            Neither the execution and delivery of this Agreement, the issuance and delivery of the Shares, the consummation of the transactions herein contemplated and the fulfillment of the terms hereof, nor compliance with the terms and provisions of this Agreement will (i) conflict with, or result in the breach of, any of the terms, provisions or conditions of the Amended and Restated Articles of Incorporation or Bylaws of the Company, or (ii) 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 upon any property or assets of the Company or any of its Significant Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other contract, agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any its Significant Subsidiaries is bound or to which its or their properties are subject or (iii) result in the violation of any law, statute, order, rule or regulation applicable to the Company or any of its Significant Subsidiaries of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its Significant Subsidiaries or over their respective properties except, in the case of clauses (ii) or (iii), any such conflict, breach or violation which, if it did exist, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
 
5
 
 
(m)          The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered and paid for as provided herein, will be duly authorized, validly issued and fully paid and nonassessable and will conform to the description of the Common Stock in the Pricing Disclosure Package and Prospectus.  Shareholders of the Company will have no preemptive rights with respect to the issuance of the Shares.
 
(n)           This Agreement has been duly authorized, executed and delivered by the Company.
 
(o)           No 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, necessary in connection with the issuance and sale of the Shares pursuant to this Agreement or the execution, delivery and performance of this Agreement, other than such  approvals that have been obtained under the Act and approvals that may be required under state securities laws or regulations of the Financial Industry Regulatory Authority (“ FINRA ”).
 
(p)           Other than as set forth or contemplated in the most recent Preliminary Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party which would reasonably be expected to have a Material Adverse Effect; and, to the best of the Company’s knowledge, there are no proceedings that are threatened or contemplated by governmental authorities or threatened by others that are required to be described in the most recent Preliminary Prospectus which are not described as required.
 
(q)           The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the most recent Preliminary Prospectus and the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “ Investment Company Act ”).
 
2.              Purchase and Sale .  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, (i) the Company agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Company, at the purchase price of $[___]  per share, the total number of Firm Shares set forth opposite their respective names in Schedule I hereto and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Option Shares as hereinafter provided in this Section 2, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (i) of this sentence, the portion of the number of Option Shares as to which such election shall have been exercised (adjusted by the Underwriters so as to eliminate fractional shares) determined by multiplying such number by a fraction, the numerator of which is the maximum number of Option Shares set forth opposite such Underwriter’s name in Schedule I hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder.  The Underwriters agree to offer the Shares to the public as set forth in the Prospectus.
 
 
6
 
 
The Company hereby grants to the Underwriters the option to purchase, at their election, up to   [_______]   of the Option Shares, at the purchase price per share specified in the first paragraph of this Section 2, for the sole purpose of covering over-allotments in the sale of the Firm Shares.  Such election may be exercised only by written notice from the Underwriters to the Company given within the period of 30 calendar days after the date of this Agreement, which notice shall set forth the aggregate number of Option Shares to be purchased and the date on   which such Option Shares are to be delivered, as determined by the Underwriters (but in no event earlier than the First Closing Date, as defined in Section 3, or, unless the Underwriters and the Company otherwise agree in writing, earlier than two or later than 10 business days after the date of such notice).

3.              Delivery and Payment .  Delivery of and payment for the Firm Shares shall be made by the Company and the Underwriters on behalf of the Underwriters at  [___]:[__]  [a.m.][p.m.], New York City time, on [______________] , at the offices of [______________] , which date and time may be postponed by agreement between the Underwriters and the Company.  Delivery of and payment for the Option Shares shall be made at the place, date and time specified by the Underwriters in the written notice of election given by the Underwriters pursuant to Section 2, or such other time and date as the Underwriters and the Company may agree upon in writing.  Such time and date for delivery of the Firm Shares is hereinafter call the “First Closing Date”; such time and date for delivery of the Option Shares, if not the First Closing Date, is hereinafter called the “Second Closing Date”; and each such time and date for delivery is hereinafter called a “Closing Date.”  Delivery of the Shares shall be made to the Underwriters for the respective accounts of the several Underwriters against payment by the several Underwriters through the Underwriters of the purchase price thereof to or upon the order of the Company by wire transfer of immediately available funds.  The Shares will be registered in the name of Cede & Co., as nominee of The Depository  Trust Company and will be made available to the Underwriters for checking in [______________], on the business day preceding the Closing Date.
 
4.              Agreements of the Company .  The Company agrees with the several Underwriters that:
 
 
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(a)           The Company will cause the Prospectus, in a form approved by the Underwriters, to be filed pursuant to Rule 424(b) under the Act and will notify the Underwriters promptly of such filing.  The Company will prepare the Final Term Sheet, containing solely a description of the terms of the Shares and of the offering, and will file such Final Term Sheet pursuant to Rule 433(d) under the Act and will notify the Underwriters promptly of such filing.  During the period for which a prospectus relating to the Shares 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 Underwriters (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 Underwriters 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 the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (v) of the suspension of the qualification of the Shares 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 Shares 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 Underwriters a copy for your review prior to filing and will not file any such proposed amendment or supplement to which the Underwriters reasonably object or (ii) any document that would be deemed to be incorporated by reference into the Prospectus without delivering to the Underwriters 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 Underwriters as to any comments which the Underwriters make in a timely manner with respect to such document.  During the period for which a prospectus relating to the Shares 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 Shares.  Following the Closing Date and, for as long as a prospectus relating to the Shares is required to be delivered under the Act, in the event of the issuance 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, 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 Shares by the Underwriters (and references herein to the “Registration Statement” shall include any such amendment or new registration statement).
 
 
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(b)           If, at any time when a prospectus relating to the Shares 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 Pricing Disclosure Package or 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters, the Company has not made and will not make any offer relating to the Shares 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 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 Pricing Disclosure Package 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 Underwriters and, upon their request, file such document and prepare and furnish without charge to each Underwriter as many copies as the Underwriters 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.
 
 
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(g)           The Company will furnish such information, execute such instruments and take such action as may be required to qualify the Shares for sale under the laws of such jurisdictions in the United States as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Shares; 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)           For a period of two years after the First Closing Date, the Company will furnish (or cause to be furnished) to each of the Underwriters, upon request, copies of all reports and financial statements filed with the Commission or any national securities exchange.
 
(i)            During the [___]-day period beginning on the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or securities convertible into or exchangeable for any shares of Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Underwriters, except for issuances pursuant to the exercise or conversion of stock options, restricted stock or restricted stock units, or performance shares or convertible notes outstanding on the date of this Agreement, grants of employee stock options, restricted stock or restricted stock units, or performance shares pursuant to the terms of a plan in effect on the date of this Agreement, issuances pursuant to the exercise or conversion of such stock options, restricted stock or restricted stock units, or performance shares, the filing of registration statements on Form S-8 and amendments thereto in connection with such stock options, restricted stock or restricted stock units, or performance shares or the Company’s employee stock purchase plans in existence on the date of this Agreement, issuances pursuant to direct stock purchase or dividend reinvestment plans in place on the date of this Agreement and the issuances pursuant to any direct stock purchase plan that replaces the Company’s current dividend reinvestment plan.
 
(j)            The Company will use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange.
 
(k)           In connection with the offering of the Shares, until the Underwriters shall have notified the Company of the completion of the sale of the Shares, 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 Shares or attempt to induce any person to purchase any Shares or (ii) make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Shares.
 
 
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(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 result in stabilization or manipulation, of the price of any security of the Company in connection with the offering of the Shares.
 
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.
 
(b)           It will, pursuant to reasonable procedures developed in good faith, retain, as and to the extent required under Rule 433 under the  Act, copies of each free writing prospectus used or referred to by it, in accordance with Rule 433.
 
(c)           It will notify [______] when it has completed the sale of the Shares and [______], in turn, will notify the Company when the sale of the Shares has been completed.
 
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 Shares 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 not to exceed $[______]) incurred in connection with “blue sky” qualifications, all costs and expenses of the printing and distribution of all documents in connection with this underwriting, the cost of listing the Shares on the New York Stock Exchange, the fees and expenses of the transfer 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 FINRA.  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.
 
 
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7.              Conditions to the Obligations of the Underwriters .  The obligations of the Underwriters to purchase the Shares at each Closing Date shall be subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof and as of such Closing Date, to the accuracy of the statements of the Company’s officers on and as of such Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
 
(a)           The Prospectus 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 Underwriters; 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; no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction.
 
(b)           The Underwriters shall be furnished with opinion letters, dated such Closing Date, of [______], [______] of the Company, that address substantially the matters set forth in Exhibit A , and [______], counsel for the Company, that address substantially the matters set forth in Exhibit B .
 
(c)           The Underwriters shall have received from [______], counsel for the Underwriters, such opinion or opinions dated such Closing Date with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
 
(d)           The Company shall have furnished to the Underwriters a certificate of the President or any Senior Vice President or Vice President of the Company, dated such Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
 
(i)            the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date with the same effect as if made on such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and
 
 
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(ii)           there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
 
(e)           The Underwriters shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and such Closing Date, respectively, and in form and substance satisfactory to the Underwriters) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that:  (A)(1) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
 
 
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(f)           Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated by the Pricing Disclosure Package.
 
(g)           Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
 
(h)           Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, financial or otherwise, whether or not arising in the ordinary course of business,  otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus, the effect of which is in the judgment of the Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or the delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
 
 
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(i)            No Underwriter shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
 
(j)            No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares.
 
(k)           All corporate proceedings and other legal matters incident to the authorization and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished to the Underwriters such other customary information, certificates and documents as they may reasonably request.
 
(l)            The Shares to be delivered at such Closing Date shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
 
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Underwriters and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the First Closing Date   and, with respect to the Option Shares, the Second Closing Date by the Underwriters.  Notice of such cancellation shall be given to the Company in writing, or by telephone, telegraph or facsimile transmission confirmed in writing.
 
8.              Conditions of Company’s Obligations .  The obligations of the Company to sell and deliver the Shares at each Closing Date are subject to the condition that prior to each such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, threatened and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act has been received by the Company.
 
 
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If this condition shall not have been fulfilled, this Agreement and all obligations of the Company hereunder may be cancelled on or at any time prior to the First Closing Date and, with respect to the Option Shares, the Second Closing Date by the Company.  Notice of such cancellation shall be given to the Underwriters in writing or by telephone or facsimile transmission confirmed in writing.
 
9.              Reimbursement of Underwriters’ Expenses .  If the sale of the Shares provided for herein is not consummated because (i) this Agreement is terminated pursuant to Section 12, (ii) any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or (iii) of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof, other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses that shall have been reasonably incurred by them in connection with the proposed purchase and sale of the Shares, including the reasonable fees and disbursements of counsel for the Underwriters.
 
10.            Indemnification .
 
(a)           The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), or any Issuer Free Writing Prospectus (or amendment or supplement thereto) or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein.
 
(b)           Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the information identified in Section 10(g) hereof as being provided by the Underwriters.
 
 
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(c)           If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “ Indemnified Person ”) shall promptly notify the person against whom such indemnification may be sought (the “ Indemnifying Person ”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 10 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided , further , that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 10.  If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person, which may be counsel to the Indemnifying Person, to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 10 that the Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding as incurred.  In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred.  Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Underwriters and any such separate firm for the Company, its directors, its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company.  The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.  No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
 
 
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(d)           If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Shares and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Shares.  The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
 
(e)           The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.  The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim.  Notwithstanding the provisions of this Section 10, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.  The Underwriters’ obligations to contribute pursuant to this Section 10 are several in proportion to their respective purchase obligations hereunder and not joint.
 
 
18
 
 
(f)            The remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
 
(g)           The Underwriters severally confirm and the Company acknowledges that the statements with respect to the offering of the Shares by the Underwriters set forth in the [________________] paragraphs in the section entitled “[Underwriting]” in the prospectus supplement that is a part of the Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by the Underwriters specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus.
 
11.            Default by an Underwriter .
 
(a)           If, on either Closing Date, any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Shares that the defaulting Underwriter agreed but failed to purchase on such Closing Date in the respective proportions that the number of shares of the Firm Shares set forth opposite the name of each remaining non-defaulting Underwriter in Schedule I bears to the total number of shares of the Firm Shares set forth opposite the names of all the remaining non-defaulting Underwriters in Schedule I; provided, however, that the remaining non-defaulting Underwriters shall not be obligated to purchase any of the Shares on such Closing Date if the total number of the Shares that the defaulting Underwriter or Underwriters agreed but failed to purchase on such date exceeds                      % of the total number of the Shares to be purchased on such Closing Date, and any remaining non-defaulting Underwriter shall not be obligated to purchase more than               % of the number of the Shares that it agreed to purchase on such Closing Date pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or those other underwriters satisfactory to the Underwriters who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Shares to be purchased on such Closing Date. If the remaining Underwriters or other Underwriters satisfactory to the Underwriters do not elect to purchase the shares that the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date, this Agreement (or, with respect to the Second Closing Date, the obligation of the Underwriters to purchase, and the Company to sell, the Option Shares) shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 6 and 9. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I who, pursuant to this Section 11, purchases Firm Shares which a defaulting Underwriter agreed but failed to purchase.
 
 
19
 
 
(b)           Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by its default. If other Underwriters are obligated or agree to purchase the Shares of a defaulting or withdrawing Underwriter, either the Underwriters or the Company may postpone the Closing Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.
 
12.            Termination .  This Agreement shall be subject to termination in the absolute discretion of the Underwriters, by notice given to the Company prior to delivery of and payment for all Shares, if prior to such time (i) trading shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market, (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities clearance or settlement services shall have occurred or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Underwriters, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
 
13.            Representations and Indemnities to Survive Delivery .  The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of their respective officers, directors or controlling persons within the meaning of the Act, and will survive delivery of and payment for the Shares.  The provisions of Sections 6, 9 and 10 hereof shall survive the termination or cancellation of this Agreement.
 
14.            Notices .  All communications hereunder will be in writing and, (i) if sent to the Underwriters, will be mailed, delivered or transmitted and confirmed to them in care of [______], [______], Attention: [______] (fax: [______]), [______], [______], Attention: [______] (fax: [______]) and [______], [______], Attention: [______] (fax: [______]), or, (ii) if sent to the Company, will be mailed, delivered or transmitted and confirmed to it at 414 Nicollet Mall, Minneapolis, Minnesota 55401, Attention: [_______] (fax:  [______]).  All communications shall take effect at the time of receipt thereof.
 
15.            Patriot Act.   In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
 
 
20
 
 
16.            Persons Entitled to Benefit of Agreement .  This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 10 hereof, and the affiliates of each Underwriter referred to in Section 10 hereof.  Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.  No purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
 
17.            Applicable Law .  This Agreement will be governed by and construed in accordance with the laws of the State of New York.
 
18.            Counterparts .  This Agreement may be executed in counterparts, all of which, taken together, shall constitute a single agreement among the parties to such counterparts.
 
19.            Amendment and Waiver .  No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
 
20.            Other .  Time shall be of the essence for all purposes of this Agreement.  As used herein, “business day” shall mean any day other than a day on which banks are permitted or required to be closed in New York City.
 
(remainder of page intentionally blank)
 
 
21
 
 
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
 
 
Very truly yours,
 
     
 
XCEL ENERGY INC.
 
 
(a Minnesota corporation)
 
       
 
By:
   
 
Name:
   
 
Title:
   
 
 
 
 
 
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
 
[UNDERWRITERS]
 
   
By:    
Name:
 
Title:
 
 
As Underwriters
 
 
 
 
 
SCHEDULE I
 
Name
 
Total Number of
Firm Shares to be
Purchased
 
Total Number of
Option Shares to be
Purchased
 
 
 
 
 
 
 
Total
 
 
 
 
 
 
 
I-1
 
 
SCHEDULE II
 
Final Term Sheet / Issuer Free Writing Prospectus
 
1.           Free Writing Prospectus, dated the date of the Underwriting Agreement, relating to the Shares and filed with the Commission pursuant to Rule 433(d) of the Act.
 
 
II-1
 

EXHIBIT A
 
Matters to be addressed by Company counsel
 
1.           The Company has been duly incorporated and is a corporation existing and in good standing under the laws of the State of Minnesota; and is qualified to do business as a foreign corporation under the laws of the states of North Dakota, South Dakota and Colorado;
 
2.           Each Significant Subsidiary of the Company has been duly incorporated and is a corporation existing and in good standing under the laws of the jurisdiction of its incorporation and is duly qualified as a foreign corporation to transact business and is in good standing in each 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;
 
3.           The Agreement has been duly authorized, executed and delivered by the Company;
 
4.           The authorized capital stock of the Company is as set forth in the most recent Preliminary Prospectus;
 
5.           The issuance and sale of the Shares in accordance with the terms of the Agreement have been duly authorized by the Company   the Shares, when registered and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute common stock of the Company (“Common Stock”) which has been duly authorized and validly issued, is fully paid and non-assessable and has not been issued in violation of the preemptive rights of any shareholder of the Company; and the Common Stock conforms as to legal matters with the statements concerning it made in the Prospectus, and such statements accurately set forth the matters respecting the Common Stock required to be set forth in the Prospectus;
 
6.           Neither the execution, delivery or performance of the Agreement, the issuance and delivery of the Shares nor the compliance by the Company with all the terms and provisions of the Agreement will result in a breach or violation of any of the terms or provisions of, or constitute a default under, (a) any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its Significant Subsidiaries is bound or to which any of their respective properties or assets are subject and of which I have Actual Knowledge, or (b) the Amended and Restated Articles of Incorporation or Bylaws of the Company, or (c) any United States Federal statute, rule or regulation that is part of a regulatory scheme specifically applicable to business organizations engaged in the type of regulated business activities conducted by the Company or any of its Significant Subsidiaries (“Specified U.S. Federal Law”) or, to my Actual Knowledge, any order of any court or of any Federal or state regulatory body or administrative agency or other governmental body that specifically names the Company or any of its Significant Subsidiaries or any of their properties except, in the case of clauses (a) or (c), any such breach, violation or default which, if it did exist, would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise) of the Company and its Significant Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business;
 
 
A-1
 
 
7.           No further approval, authorization, consent, certificate or order of, or filing or registration with, any United States governmental body, federal, state or other, is required under Specified U.S. Federal Law in connection with the issuance and sale of the Shares by the Company as provided in the Agreement, the Pricing Disclosure Package and the Prospectus, except as may be required by state securities laws;
 
8.           To my Actual Knowledge, there are no legal or governmental proceedings involving the Company or its subsidiaries required to be described in the Pricing Disclosure Package or the Prospectus which are not described as required.
 
I, or other attorneys in the Company’s Law Department at my request, have participated in the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus includes the documents incorporated in or deemed to be incorporated therein pursuant to Item 12 of Form S-3 under the Act (collectively, such incorporated documents, the “Exchange Act Documents”). From time to time, I, or other attorneys in the Company’s Law Department at my request, have had discussions with certain officers, directors and employees of the Company, with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined the financial statements of the Company included in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, with the Underwriters and with counsel to the Underwriters concerning the information contained in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and the responses to various items in Form S-3. I have not independently verified and am not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus. Based solely on my participation (and the participation of other attorneys in the Company’s Law Department at my request) and discussions described above, however, no facts have come to my attention that cause me to believe that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Act), as of [___________] (which is the date you have identified as the earlier of the date the Prospectus was first used or the date of the first contract of sale of any Bonds), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Pricing Disclosure Package, as of [___] p.m., New York City time, on [___________] (which is the time that you have informed us was prior to the first contract of sale of any Bonds by the Underwriters), included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus, as of its date or as of the date hereof, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case I express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein, (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
 
A-2
 
 
EXHIBIT B
 
Matters to be addressed by opinion of Jones Day
 
1.           No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court of the United States or the State of New York is required in connection with the issuance or sale of the Shares by the Company to the Underwriters, except (i) as may be required under state securities or “blue sky” laws and (ii) such as have been obtained or made under the Securities Act of 1933 (the “Securities Act”), or the Securities Exchange Act of 1934.
 
2.           The (i) execution, delivery and performance of the Underwriting Agreement by the Company and (ii) issuance and sale of the Shares by the Company will not violate any law or regulation known to us to be generally applicable to transactions of this type (other than federal and state securities or “blue sky” laws, as to which no opinion is expressed in this paragraph), or any order or decree of any court, arbitrator or governmental agency that is binding upon the Company or any of its Significant Subsidiaries or any of their properties or any agreement to which the Company or any of its Significant Subsidiaries is a party or bound (this opinion being limited (i) to those orders and decrees identified on Exhibit A attached hereto and to those agreements identified on Exhibit B attached hereto, and (ii) in that we express no opinion with respect to any violation or default (a) not readily ascertainable from the face of any such order, decree or agreement, (b) arising under or based upon any cross default provision insofar as it relates to a violation of or default under an agreement not identified on Exhibit B attached hereto or (c) arising as a result of any violation of or default under any agreement or covenant by failure to comply with any financial or numerical requirement requiring computation).
 
3.           The statements contained in the Pricing Disclosure Package and the Prospectus under the captions “[________________],” insofar as such statements purport to summarize provisions of the documents referred to therein, present fair summaries of such documents in all material respects;
 
4.           The Company is not required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940.
 
 
B-1
 
 
We have participated in the preparation of the Company’s registration statement on Form S-3 (Registration No. 333-[______]) (the “Registration Statement”), the prospectus dated [______] (the “Base Prospectus”), the preliminary prospectus supplement dated [______] (together with the Base Prospectus, the “Preliminary Prospectus”), the Final Term Sheet (together with the Preliminary Prospectus, the “Pricing Disclosure Package”) and the prospectus supplement, dated [______] (together with the Base Prospectus, the “Prospectus”).  Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus includes the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act.  From time to time, we have had discussions with certain officers and employees of the Company, with representatives of Deloitte & Touche LLP, the independent registered public accounting firm who examined the financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, with the Underwriters and with counsel to the Underwriters concerning the information contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus and the responses to various items in Form S-3.  Based upon our participation and discussions described above, we are of the view that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Securities Act), as of [______], which is the date you have identified as the earlier of the date the Prospectus was first used or the date of the first contract of sale of any Shares (such date, the “Effective Date”), and the Prospectus, as of its date, complied as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Shares and Exchange Commission (the “Commission”) thereunder, except that we express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein or (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
We have not independently verified and are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness (except as and to the extent set forth in paragraph 3 above) of the information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus.  Based on our participation and discussions described above, however, no facts have come to our attention that cause us to believe that the Registration Statement (including all information deemed to be part of and included therein pursuant to Rule 430B under the Securities Act), as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, that the Pricing Disclosure Package, as of [______] p.m., New York City time, on [______], (which is the time that you have informed us was prior to the first contract of sale of any Shares by the Underwriters), included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus, as of its date and as of the date hereof, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that in each case we express no view with respect to (a) the financial statements, financial schedules and other financial and statistical data included or incorporated by reference therein or (b) the information referred to under the caption “Experts” as having been included or incorporated by reference therein on the authority of Deloitte & Touche LLP, as experts.
 
The Registration Statement has become effective under the Securities Act, and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending or threatened by the Commission.
 
 
B-1
Exhibit 4.13
 
XCEL ENERGY INC.
(a Minnesota corporation)
 
AND
 
[_______________________________]
 
TRUSTEE
 
FORM OF
 
SUBORDINATED INDENTURE
DATED AS OF [___________]
 
Providing for issuance of Subordinated Debt Securities
 
 
 
 
 
CROSS REFERENCE SHEET SHOWING THE
LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
PURSUANT TO SECTIONS 310 THROUGH 318(A) INCLUSIVE OF
THE TRUST INDENTURE ACT OF 1939
 
SECTION OF
 TRUST
INDENTURE ACT
 
SECTION OF INDENTURE
 
PAGE
310(a)(1)
 
8.9
  37
310(a)(2)
 
8.9
  37
310(a)(3)
 
NOT APPLICABLE
 
—
310(a)(4)
 
NOT APPLICABLE
 
—
310(a)(5)
 
8.9
 
37
310(b)
 
8.8
 
36
311(a)
 
8.14
 
39
311(b)
 
8.14
 
39
312(a)
 
6.1(a)
 
25
312(b)
 
6.1(b)
 
25
312(c)
 
6.1(c)
 
26
313(a)
 
6.3(a)
 
27
313(b)
 
6.3(b)
 
27
313(c)
 
6.3(d)
 
27
313(d)
 
6.3(c) and 6.3(d)
 
27
314(a)
 
6.2(a), 6.2(b) and 6.2(c)
 
26
314(b)
 
NOT APPLICABLE
 
—
314(c)(1)
 
Definition of Officers’ Certificate and 15.5
 
4, 54
314(c)(2)
 
Definition of Opinion of Counsel and 15.5
 
4, 54
314(c)(3)
 
NOT APPLICABLE
 
—
314(d)(1)
 
NOT APPLICABLE
 
—
314(d)(2)
 
NOT APPLICABLE
 
—
314(d)(3)
 
NOT APPLICABLE
 
—
314(e)
 
15.5(b)
 
54
314(f)
 
NOT APPLICABLE
 
—
315(a)
 
8.1 and 8.2(b)
 
33,34
315(b)
 
7.8
 
33
315(c)
 
8.1(a)
 
33
315(d)
 
8.1(b)
 
34
315(e)
 
7.9
 
33
316(a)
 
7.7, 9.4 and 12.2
 
32, 41, 46
316(b)
 
7.4(b) and 12.2
 
32, 46
316(c)
 
9.6
 
41
 
 
 
 
 
SECTION OF
 TRUST
INDENTURE ACT
 
SECTION OF INDENTURE
 
PAGE
317(a)(1)
 
7.2(b)
  30
317(a)(2)
 
7.2(c)
  30
317(b)
 
4.2 and 5.4
  22, 24
318(a)
 
15.7
  55

 
-iii-
 
 
TABLE OF CONTENTS

     
Page
       
ARTICLE I
DEFINITIONS
1
       
Section 1.1
 
General
1
Section 1.2
 
Trust Indenture Act
1
Section 1.3
 
Definitions
1
       
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
8
       
Section 2.1
 
Form Generally
8
Section 2.2
 
Form Of Trustee’s Certificate Of Authentication
8
Section 2.3
 
Amount Unlimited
9
Section 2.4
 
Denominations, Dates, Interest Payment And Record Dates
9
Section 2.5
 
Execution, Authentication, Delivery And Dating
10
Section 2.6
 
Exchange And Registration Of Transfer Of Securities
13
Section 2.7
 
Mutilated, Destroyed, Lost Or Stolen Securities
14
Section 2.8
 
Temporary Securities
15
Section 2.9
 
Cancellation Of Securities Paid, Etc
15
  Section 2.10
 
Interest Rights Preserved
15
  Section 2.11
 
Special Record Date
15
  Section 2.12
 
Payment Of Securities
15
  Section 2.13
 
Securities Issuable In The Form Of A Global Security
16
  Section 2.14
 
Deferrals of Interest Payment Dates
18
  Section 2.15
 
Agreed Tax Treatment
19
  Section 2.16
 
CUSIP and Other Numbers
19
       
ARTICLE III
REDEMPTION OF SECURITIES
19
       
Section 3.1
 
Applicability Of Article
19
Section 3.2
 
Notice Of Redemption; Selection Of Securities
19
Section 3.3
 
Payment Of Securities On Redemption; Deposit Of Redemption Price
20
       
ARTICLE IV
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
21
       
Section 4.1
 
Satisfaction and Discharge of Indenture
21
Section 4.2
 
Deposited Moneys To Be Held In Trust By Trustee
22
Section 4.3
 
Paying Agent To Repay Moneys Held
23
Section 4.4
 
Return Of Unclaimed Moneys
23
       
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
23
       
Section 5.1
 
Payment Of Principal, Premium And Interest
23
Section 5.2
 
Office For Notices And Payments, Etc
23
Section 5.3
 
Appointments To Fill Vacancies In Trustee’s Office
23
Section 5.4
 
Provision As To Paying Agent
24
Section 5.5
 
Certificates And Notice To Trustee
24
 
 
-i-
 
 
TABLE OF CONTENTS
(continued)
 
   
Page
     
ARTICLE VI
SECURITYHOLDER LISTS AND REPORTS BY THE  COMPANY AND THE TRUSTEE
25
       
Section 6.1
 
Securityholder Lists
25
Section 6.2
 
Securities And Exchange Commission Reports
26
Section 6.3
 
Reports By The Trustee
27
       
ARTICLE VII
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS  ON EVENTS OF DEFAULT
27
       
Section 7.1
 
Events Of Default
27
Section 7.2
 
Payment Of Securities On Default; Suit Therefor
29
Section 7.3
 
Application Of Moneys Collected By Trustee
31
Section 7.4
 
Proceedings By Securityholders
31
Section 7.5
 
Proceedings By Trustee
32
Section 7.6
 
Remedies Cumulative And Continuing
32
Section 7.7
 
Direction Of Proceedings And Waiver Of Defaults By Majority Of Securityholders
32
Section 7.8
 
Notice Of Default
33
Section 7.9
 
Undertaking To Pay Costs
33
       
ARTICLE VIII
CONCERNING THE TRUSTEE
33
       
Section 8.1
 
Duties And Responsibilities Of Trustee
33
Section 8.2
 
Reliance On Documents, Opinions, Etc
34
Section 8.3
 
No Responsibility For Recitals, Etc
35
Section 8.4
 
Trustee, Authenticating Agent, Paying Agent Or Registrar May Own Securities
35
Section 8.5
 
Moneys To Be Held In Trust
36
Section 8.6
 
Compensation And Expenses Of Trustee
36
Section 8.7
 
Officers’ Certificate As Evidence
36
Section 8.8
 
Conflicting Interest Of Trustee
36
Section 8.9
 
Existence And Eligibility Of Trustee
37
  Section 8.10
 
Resignation Or Removal Of Trustee
37
  Section 8.11
 
Appointment Of Successor Trustee
38
  Section 8.12
 
Acceptance By Successor Trustee
38
  Section 8.13
 
Succession By Merger, Etc
39
  Section 8.14
 
Limitations On Rights Of Trustee As A Creditor
39
  Section 8.15
 
Authenticating Agent
39
       
ARTICLE IX
CONCERNING THE SECURITYHOLDERS
40
       
Section 9.1
 
Action By Securityholders
40
Section 9.2
 
Proof Of Execution By Securityholders
40
Section 9.3
 
Who Deemed Absolute Owners
40
Section 9.4
 
Company-Owned Securities Disregarded
41
Section 9.5
 
Revocation Of Consents; Future Holders Bound
41
 
 
-ii-
 
 
TABLE OF CONTENTS
(continued)
 
     
Page
       
Section 9.6
 
Record Date For Securityholder Acts
41
       
ARTICLE X
SECURITYHOLDERS’ MEETING
42
       
Section 10.1
 
Purposes Of Meetings
42
Section 10.2
 
Call Of Meetings By Trustee
42
Section 10.3
 
Call Of Meetings By Company Or Securityholders
42
Section 10.4
 
Qualifications For Voting
42
Section 10.5
 
Regulations
43
Section 10.6
 
Voting
43
Section 10.7
 
Rights Of Trustee Or Securityholders Not Delayed
44
       
ARTICLE XI
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
44
       
Section 11.1
 
Company May Consolidate, Etc
44
Section 11.2
 
Successor Corporation Substituted
44
       
ARTICLE XII
SUPPLEMENTAL INDENTURES
45
       
Section 12.1
 
Supplemental Indentures Without Consent Of Securityholders
45
Section 12.2
 
Supplemental Indentures With Consent Of Securityholders
46
Section 12.3
 
Compliance With Trust Indenture Act; Effect Of Supplemental Indentures
47
Section 12.4
 
Notation On Securities
47
Section 12.5
 
Evidence Of Compliance Of Supplemental Indenture To Be Furnished Trustee
47
       
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
48
       
Section 13.1
 
Indenture And Securities Solely Corporate Obligations
48
       
ARTICLE XIV
SUBORDINATION OF SECURITIES
48
       
Section 14.1
 
Agreement To Subordinate
48
Section 14.2
 
Obligation Of The Company Unconditional
50
Section 14.3
 
Limitations On Duties To Holders Of Senior Indebtedness Of The Company
50
Section 14.4
 
Notice To Trustee Of Facts Prohibiting Payment
50
Section 14.5
 
Application By Trustee Of Moneys Deposited With It
51
Section 14.6
 
Subrogation
51
Section 14.7
 
Subordination Rights Not Impaired By Acts Or Omissions Of Company Or Holders Of Senior Indebtedness Of The Company
51
Section 14.8
 
Authorization Of Trustee To Effectuate Subordination Of Securities
52
Section 14.9
 
No Payment When Senior Indebtedness In Default
52
  Section 14.10
 
Right Of Trustee To Hold Senior Indebtedness Of The Company
53
 
 
-iii-
 
 
TABLE OF CONTENTS
(continued)
 
     
Page
       
  Section 14.11
 
Article XIV Not To Prevent Defaults
53
       
ARTICLE XV
MISCELLANEOUS PROVISIONS
53
       
Section 15.1
 
Provisions Binding On Company’s Successors
53
Section 15.2
 
Official Acts By Successor Corporation
53
Section 15.3
 
Notices
53
Section 15.4
 
Governing Law
54
Section 15.5
 
Evidence Of Compliance With Conditions Precedent
54
Section 15.6
 
Business Days
55
Section 15.7
 
Trust Indenture Act To Control
55
Section 15.8
 
Table Of Contents, Headings, Etc
55
Section 15.9
 
Execution In Counterparts
55
  Section 15.10
 
Manner Of Mailing Notice To Securityholders
55
  Section 15.11
 
Approval By Trustee Of Expert Or Counsel
56
 
 
-iv-
 
 
THIS SUBORDINATED INDENTURE, dated as of                 , between XCEL ENERGY INC., a corporation duly organized and existing under the laws of the State of Minnesota (the “Company” ), and [_______________________________], a [national] banking [association] organized and existing under the laws of the United States, as trustee (the “Trustee” ).
 
WITNESSETH
 
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (the “Securities” ), to be issued as in this Indenture provided;
 
AND WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to its terms have been done and performed, and the execution of this Indenture and the issue hereunder of the Securities have in all respects been duly authorized;
 
NOW THEREFORE, THIS INDENTURE WITNESSETH:
 
That in order to declare the terms and conditions upon which the Securities are, and are to be authenticated, issued and delivered, and in consideration of the premises, of the purchase and acceptance of the Securities by the Holders thereof and of the sum of one dollar duly paid to it by the Trustee at the execution of this Indenture, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Securities or of any series thereof, as follows:
 
ARTICLE I
DEFINITIONS
 
Section 1.1         General.   The terms defined in this Article I (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Article I.
 
Section 1.2         Trust Indenture Act.   (a)  Whenever this Indenture refers to a provision of the Trust Indenture Act of 1939, as amended (the “ TIA ”), such provision is incorporated by reference in and made a part of this Indenture.
 
(b)           Unless otherwise indicated, all terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by a rule of the Commission under the TIA shall have the meanings assigned to them in the TIA or such statute or rule as in force on the date of execution of this Indenture.
 
Section 1.3         Definitions.   For purposes of this Indenture, the following terms shall have the following meanings.
 
 
 
 
 
ADDITIONAL INTEREST:
 
The term “Additional Interest” means the interest, if any, that shall accrue on any interest on the Securities of any series the payment of which has not been made on the applicable Interest Payment Date and which shall accrue at the rate per annum specified or determined as specified in such Security.
 
AUTHENTICATING AGENT:
 
The term “Authenticating Agent” shall mean any agent of the Trustee which shall be appointed and acting pursuant to Section 8.15 hereof.
 
AUTHORIZED AGENT:
 
The term “Authorized Agent” shall mean any agent of the Company designated as such by an Officers’ Certificate delivered to the Trustee.
 
BOARD OF DIRECTORS:
 
The term “Board of Directors” shall mean the Board of Directors of the Company or the Financing Committee of such Board or any other duly authorized committee of such Board.
 
BOARD RESOLUTION:
 
The term “Board Resolution” shall mean a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
 
BUSINESS DAY:
 
The term “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions or trust companies in the Borough of Manhattan, the City and State of New York, or in the city where the corporate trust office of the Trustee is located, are obligated or authorized by law or executive order to close, except as otherwise specified in a Company Order pursuant to Section 2.5 hereof.
 
CAPITAL STOCK:
 
The term “Capital Stock” means shares of capital stock of any class of any corporation whether now or hereafter authorized regardless of whether such capital stock shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate in dividends and in the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up.
 
 
- 2 -
 
 
COMMISSION:
 
The term “Commission” shall mean the United States Securities and Exchange Commission, or if at any time hereafter the Commission is not existing or performing the duties now assigned to it under the TIA, then the body performing such duties.
 
COMMON STOCK:
 
The term “Common Stock” means the common stock, par value $2.50 per share, of the Company.
 
COMPANY:
 
The term “Company” shall mean the corporation named as the “Company” in the first paragraph of this Indenture, and its successors and assigns permitted hereunder.
 
COMPANY ORDER:
 
The term “Company Order” shall mean a written order signed in the name of the Company by one of the Chairman, the President, any Vice President, the Treasurer or an Assistant Treasurer, and the Secretary, an Assistant Secretary or a Vice President of the Company, and delivered to the Trustee.
 
CORPORATE TRUST OFFICE OF THE TRUSTEE:
 
The term “corporate trust office of the Trustee,” or other similar term, shall mean the corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be principally administered, which office is at the date of the execution of this Indenture located at [Corporate Trust Services, 625 Marquette Avenue, MAC N9311-110, Minneapolis, Minnesota 55479].
 
DEPOSITORY:
 
The term “Depository” shall mean, unless otherwise specified in a Company Order pursuant to Section 2.5 hereof, The Depository Trust Company, New York, New York, or any successor thereto registered and qualified under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation.
 
EVENT OF DEFAULT:
 
The term “Event of Default” shall mean any event specified in Section 7.1 hereof, continued for the period of time, if any, and after the giving of the notice, if any, therein designated.
 
EXTENSION PERIOD:
 
The term “Extension Period” has the meaning specified in Section 2.14.
 
 
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GLOBAL SECURITY:
 
The term “Global Security” shall mean a Security that pursuant to Section 2.5 hereof is issued to evidence Securities, that is delivered to the Depository or pursuant to the instructions of the Depository and that shall be registered in the name of the Depository or its nominee.
 
INDENTURE:
 
The term “Indenture” shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
 
INTEREST PAYMENT DATE:
 
The term “Interest Payment Date” shall mean, unless otherwise specified in a Company Order pursuant to Section 2.5 hereof, (a) each of the dates specified as such in the Company Order with respect to any Security (provided that the first Interest Payment Date for any Security, the Original Issue Date of which is after a Regular Record Date but prior to the respective Interest Payment Date, shall be the Interest Payment Date following the next succeeding Regular Record Date), (b) a date of maturity of such Security and (c) only with respect to defaulted interest on such Security, the date established by the Trustee for the payment of such defaulted interest pursuant to Section 2.11 hereof.
 
MATURITY:
 
The term “maturity,” when used with respect to any Security, shall mean the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the stated maturity thereof or by declaration of acceleration, redemption or otherwise.
 
OFFICERS’ CERTIFICATE:
 
The term “Officers’ Certificate” when used with respect to the Company, shall mean a certificate signed by one of the Chairman, the President, any Vice President, the Treasurer or an Assistant Treasurer, and by the Secretary, an Assistant Secretary or a Vice President of the Company.
 
OPINION OF COUNSEL:
 
The term “Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who may be an employee of the Company, meeting the applicable requirements of Section 15.5 hereof.  If the Indenture requires the delivery of an Opinion of Counsel to the Trustee, the text and substance of which has been previously delivered to the Trustee, the Company may satisfy such requirement by the delivery by the legal counsel that delivered such previous Opinion of Counsel of a letter to the Trustee to the effect that the Trustee may rely on such previous Opinion of Counsel as if such Opinion of Counsel was dated and delivered the date delivery of such Opinion of Counsel is required.  Any Opinion of Counsel may contain conditions and qualifications satisfactory to the Trustee.
 
 
- 4 -
 
 
OPINION OF INDEPENDENT COUNSEL:
 
The term “Opinion of Independent Counsel” shall mean an opinion in writing signed by legal counsel, who shall not be an employee of the Company, meeting the applicable requirements of Section 15.5.  Any Opinion of Independent Counsel may contain conditions and qualifications satisfactory to the Trustee.
 
ORIGINAL ISSUE DATE:
 
The term “Original Issue Date” shall mean for a Security, or portions thereof, the date upon which it, or such portion, was issued by the Company pursuant to this Indenture and authenticated by the Trustee (other than in connection with a transfer, exchange or substitution).
 
OUTSTANDING:
 
The term “outstanding,” when used with reference to Securities, shall, subject to Section 9.4 hereof, mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
 
(a)           Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
 
(b)           Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company), provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article III, or provisions satisfactory to the Trustee shall have been made for giving such notice;
 
(c)           Securities, or portions thereof, that have been paid and discharged or are deemed to have been paid and discharged pursuant to the provisions of this Indenture; and
 
(d)           Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered, or which have been paid, pursuant to Section 2.7 hereof.
 
PERSON:
 
The term “Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or government or any agent or political subdivision thereof.
 
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
 
The term “principal executive offices of the Company” shall mean 414 Nicollet Mall, Minneapolis, Minnesota 55401, or such other place where the main corporate offices of the Company are located as designated in writing to the Trustee by an Authorized Agent.
 
 
- 5 -
 
 
RANKING JUNIOR TO THE SECURITIES:
 
The term “ranking junior to the Securities” of any series when used with respect to any obligation of the Company means any other obligation of the Company which (a) ranks junior to and not equally with or prior to such Securities (or any other obligations of the Company ranking on a parity with such Securities) in right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph of Section 14.1, or (b) is specifically designated as ranking junior to such Securities by express provision in the instrument creating or evidencing such obligation.
 
The securing of any obligations of the Company, otherwise ranking junior to such Securities, shall be deemed to prevent such obligations from constituting obligations ranking junior to such Securities.
 
RANKING ON A PARITY WITH THE SECURITIES:
 
The term “ranking on a parity with the Securities” of any series when used with respect to any obligation of the Company means (a) any obligation of the Company which ranks equally with and not prior to such Securities in right of payment upon the happening of any event of the kind specified in the first sentence of the second paragraph of Section 14.1, or (b) any obligation of the Company which is specifically designated as ranking on a parity with such Securities by express provision in the instrument creating or evidencing such obligation.
 
The securing of any obligations of the Company, otherwise ranking on a parity with such Securities, shall not be deemed to prevent such obligations from constituting obligations ranking on a parity with such Securities.
 
REGULAR RECORD DATE:
 
The term “Regular Record Date” shall mean, unless otherwise specified in a Company Order pursuant to Section 2.5, for an Interest Payment Date for a particular Security (a) the fifteenth day of the calendar month next preceding each Interest Payment Date (unless the Interest Payment Date is the date of maturity of such Security, in which event, the Regular Record Date shall be as described in clause (b) hereof) and (b) the date of maturity of such Security.
 
RESPONSIBLE OFFICER:
 
The term “responsible officer” or “responsible officers” when used with respect to the Trustee shall mean one or more of the following: the chairman of the board of directors, the vice chairman of the board of directors, the chairman of the executive committee, the president, any vice president, the secretary, the treasurer, any trust officer, any assistant trust officer, any second or assistant vice president, any assistant secretary, any assistant treasurer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
 
 
- 6 -
 
 
SECURITY OR SECURITIES:
 
The terms “Security” or “Securities” shall mean any security or securities, as the case may be, authenticated and delivered under this Indenture, including any Global Security.
 
SECURITYHOLDER:
 
The terms “Securityholder,” “Holder of Securities” or “Holder” shall mean any Person in whose name at the time a particular Security is registered on the books of the Trustee, in its capacity as the registrar, kept for that purpose in accordance with the terms hereof.
 
SENIOR INDEBTEDNESS OF THE COMPANY:
 
[The term “Senior Indebtedness of the Company” means (a) any current or future indebtedness of the Company for borrowed or purchased money, whether or not evidenced by bonds, debentures, notes or other similar written instruments, (b) obligations of the Company under synthetic leases, finance leases and capitalized leases, (c) obligations of the Company for reimbursement under letters of credit, banker’s acceptances, security purchase facilities or similar facilities issued for the account of the Company, (d) any indebtedness or other obligations of the Company with respect to derivative contracts, including but not limited to commodity contracts, interest rate, commodity and currency swap agreements, forward contracts, and other similar agreements or arrangements designed to protect against fluctuations in commodity prices, currency exchange or interest rates, and (e) any guarantees, endorsements, assumptions (other than by endorsement of negotiable instruments for collection in the ordinary course of business) or other similar contingent obligations in respect of obligations of others of a type described in (a), (b), (c) or (d) above, whether or not such obligation is classified as a liability on a balance sheet prepared in accordance with generally accepted accounting principles, in each case listed in (a), (b), (c), (d) and (e) above whether outstanding on the date of execution of this Indenture or thereafter incurred; provided, however, that “Senior Indebtedness of the Company” does not include (i) trade accounts payable, (ii) accrued liabilities arising in the ordinary course of business, (iii) any indebtedness of the Company to any of its subsidiaries or (iv) obligations that by their terms rank junior to or on parity with the Securities.]
 
SPECIAL RECORD DATE:
 
The term “Special Record Date” shall mean, with respect to any Security, the date established by the Trustee in connection with the payment of defaulted interest on such Security pursuant to Section 2.11 hereof.
 
STATED MATURITY:
 
The term “stated maturity” shall mean with respect to any Security, the last date on which principal on such Security becomes due and payable as therein or herein provided, other than by declaration of acceleration or by redemption.
 
 
- 7 -
 
 
TRUSTEE:
 
The term “Trustee” shall mean [_________________________________] and, subject to Article VIII, shall also include any successor Trustee.
 
U.S. GOVERNMENT OBLIGATIONS:
 
The term “U.S. Government Obligations” shall mean (a) direct non-callable obligations of, or non-callable obligations guaranteed as to timely payment of principal and interest by, the United States of America or an agency thereof for the payment of which obligations or guarantee the full faith and credit of the United States is pledged or (b) certificates or receipts representing direct ownership interests in obligations or specified portions (such as principal or interest) of obligations described in clause (a) above, which obligations are held by a custodian in safekeeping in a manner satisfactory to the Trustee.
 
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
 
Section 2.1         Form Generally .
 
(a)           If the Securities are in the form of a Global Security they shall be in substantially the form set forth in Exhibit A to this Indenture, and, if the Securities are not in the form of a Global Security, they shall be in substantially the form set forth in Exhibit B to this Indenture, or, in any case, in such other form as shall be established by a Board Resolution, or a Company Order pursuant to a Board Resolution, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable rules of any securities exchange or of the Depository or with applicable law or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities.
 
(b)           The definitive Securities shall be typed, printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
 
Section 2.2         Form Of Trustee’s Certificate Of Authentication.   The Trustee’s certificate of authentication on all Securities shall be in substantially the following form:
 
Trustee’s Certificate of Authentication
 
This Security is one of the Securities of the series herein designated, described or provided for in the within-mentioned Indenture.
 
 
[________________________________], as Trustee
     
 
By:
 
   
Authorized Officer

 
- 8 -
 
 
Section 2.3         Amount Unlimited.   The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited, subject to compliance with the provisions of this Indenture.
 
Section 2.4        Denominations, Dates, Interest Payment And Record Dates .
 
(a)           The Securities of each series shall be issuable in registered form without coupons in denominations of $1,000 and integral multiples thereof or such other amount or amounts as may be authorized by the Board of Directors or a Company Order pursuant to a Board Resolution or in one or more indentures supplemental hereto.
 
(b)           Each Security shall be dated and issued as of the date of its authentication by the Trustee, and shall bear an Original Issue Date or, as provided in Section 2.13(e) hereof, two or more Original Issue Dates; each Security issued upon transfer, exchange or substitution of a Security shall bear the Original Issue Date or Dates of such transferred, exchanged or substituted Security, subject to the provisions of Section 2.13(e) hereof.
 
(c)           Each Security shall bear interest from the later of (i) its Original Issue Date (or, if pursuant to Section 2.13 hereof, a Global Security has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal amount of such Global Security to which that Original Issue Date is applicable), or (ii) the most recent date to which interest has been paid or duly provided for with respect to such Security until the principal of such Security is paid or made available for payment, and interest on each Security shall be payable on each Interest Payment Date after the Original Issue Date.
 
(d)           Each Security shall mature on a stated maturity specified in the Security.  The principal amount of each outstanding Security shall be payable on the maturity date or dates specified therein.
 
(e)           Unless otherwise specified in a Company Order pursuant to Section 2.5 hereof, interest on each of the Securities shall be calculated on the basis of a 360-day year of twelve 30-day months and shall be computed at a fixed rate until the maturity of such Securities.  The method of computing interest on any Securities not bearing a fixed rate of interest shall be set forth in a Company Order pursuant to Section 2.5 hereof.  Unless otherwise specified in a Company Order pursuant to Section 2.5 hereof, principal, interest and premium on the Securities shall be payable in the currency of the United States.
 
(f)            Except as provided in the following sentence, the Person in whose name any Security is registered at the close of business on any Regular Record Date or Special Record Date with respect to an Interest Payment Date for such Security shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding the cancellation of such Security upon any registration of transfer, exchange or substitution of such Security subsequent to such Regular Record Date or Special Record Date and prior to such Interest Payment Date.  Any interest payable at maturity shall be paid to the Person to whom the principal of such Security is payable.
 
 
- 9 -
 
 
(g)           The Trustee (or any duly selected paying agent) shall provide to the Company during each month that precedes an Interest Payment Date a list of the principal, interest and premium to be paid on Securities on such Interest Payment Date; provided, however, that any failure to receive such notice shall not relieve the Company of its obligation to pay the principal, interest and premium on the Securities when due.  The Trustee shall assume responsibility for withholding taxes on interest paid as required by law except with respect to any Global Security.
 
Section 2.5         Execution, Authentication, Delivery And Dating .
 
(a)           The Securities shall be executed on behalf of the Company by one of its Chairman, President, any Vice President, its Treasurer or an Assistant Treasurer of the Company and attested by the Secretary or an Assistant Secretary of the Company.  The signature of any of these officers on the Securities may be manual or facsimile.
 
(b)           Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
 
(c)           At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with or preceded by one or more Company Orders for the authentication and delivery of such Securities, and the Trustee in accordance with any such Company Order shall authenticate and deliver such Securities.  The Securities shall be issued in series.  Such Company Order shall specify the following with respect to each series of Securities: (i) any limitations on the aggregate principal amount of the Securities to be issued as part of such series, (ii) the Original Issue Date or Dates for such series, (iii) the stated maturity or maturities of such series, (iv) the interest rate or rates, or method of calculation of such rate or rates, for such series and extent to which Additional Interest or other interest, if any, shall be payable, the date or dates from which such interest shall accrue, and the rights, if any, of the Company to defer or extend an Interest Payment Date, (v) the terms and conditions, if any, regarding the optional or mandatory redemption of such series, including redemption date or dates of such series, if any, and the price or prices applicable to such redemption (including any premium), (vi) the period or periods within which, the price or prices at which and the terms and conditions upon which such Securities may be repaid, in whole or in part, at the option of the Holder thereof, (vii) whether or not the Securities of such series shall be issued in whole or in part in the form of a Global Security and, if so, the Depository for such Global Security, (viii) the designation of such series (which shall distinguish the Securities of the series from all other Securities and which shall include the word “subordinated” or a work of like meaning), (ix) if the form of the Securities of such series is not as described in Exhibit A or Exhibit B hereto, the form of the Securities of such series, (x) the maximum annual interest rate, if any, of the Securities permitted for such series, (xi) any other information necessary to complete the Securities of such series, (xii) the establishment of any office or agency pursuant to Section 5.2 hereof, (xiii) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any of such series of Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein, (xiv) whether any Securities of such series are subject to any securities law or other restrictions on transfer, (xv) any deletions from, modifications or additions to the provisions of Article IV in respect of the Securities of such series, (xvi) any covenant limiting the declaration or payment of dividends or distributions on, or redemptions, purchases, acquisitions or liquidation payments with respect to, shares of the Company’s Capital Stock and (xvii) any other terms of such series not inconsistent with this Indenture.  The Securities of all series shall be subordinate to Senior Indebtedness of the Company as provided in Article XIV.  The applicable Board Resolution, Company Order or supplemental indenture may provide that Securities of any particular series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which interest may be determined, with different dates from which such interest shall accrue, with different dates on which such interest may be payable or with any different terms other than Events of Default but all such Securities of a particular series shall for all purposes under this Indenture including, but not limited to, voting and Events of Default, be treated as Securities of a single series.  Unless otherwise expressly provided with respect to a series of Securities, the aggregate principal amount of a series of Securities may be increased and additional Securities of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
 
 
- 10 -
 
 
Prior to authenticating Securities of any series, and in accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive from the Company the following at or before the issuance of the initial Security of such series of Securities, and (subject to Section 8.1 hereof) shall be fully protected in relying upon:
 
(1)       A Board Resolution authorizing such Company Order or Orders and, if the form of Securities is established by a Board Resolution or a Company Order pursuant to a Board Resolution, a copy of such Board Resolution;
 
(2)       an Opinion of Counsel stating substantially the following subject to customary qualifications and exceptions:
 
(A)       if the form of Securities has been established by or pursuant to a Board Resolution, a Company Order pursuant to a Board Resolution, or in a supplemental indenture as permitted by Section 2.1 hereof, that such form has been established in conformity with this Indenture;
 
(B)       that the Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of general application relating to or affecting the enforcement of creditors and the application of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except as enforcement of provisions of the Indenture may be limited by state laws affecting the remedies for the enforcement of the security provided for in the Indenture;
 
 
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(C)       that such Securities have been duly authorized and executed by the Company, and when authenticated by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of general application relating to or affecting the enforcement of creditors and the application of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except as enforcement of provisions of this Indenture may be limited by state laws affecting the remedies for the enforcement of the security provided for in this Indenture; and
 
(D)       that the issuance of the Securities will not result in any default under this Indenture.
 
(3)       an Officers’ Certificate stating that (i) the Company is not, and upon the authentication by the Trustee of the series of Securities, will not be in default under any of the terms or covenants contained in the Indenture, and (ii) all conditions that must be met by the Company to issue Securities under this Indenture have been met.
 
(d)           The Trustee shall have the right to decline to authenticate and deliver any Security:
 
(1)       if the issuance of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee;
 
(2)       if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; or
 
(3)       if the Trustee in good faith by its Board of Directors, executive officers or a trust committee of directors and/or responsible officers determines that such action would expose the Trustee to personal liability to Holders of any outstanding Securities.
 
(e)           No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by the manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
 
(f)            If all Securities of a series are not to be authenticated and issued at one time, the Company shall not be required to deliver the Company Order, Board Resolutions, Officers’ Certificate and Opinion of Counsel (including any such that would be otherwise required pursuant to Section 15.5 hereof) described in Section 2.5(c) hereof at or prior to the authentication of each Security of such series, if such items are delivered at or prior to the time of authentication of the first Security of such series to be authenticated and issued.  If all of the Securities of a series are not authenticated and issued at one time, for each issuance of Securities after the initial issuance of Securities, the Company shall be required only to deliver to the Trustee the Security and a written request (executed by one of the Chairman, the President, any Vice President, the Treasurer, or an Assistant Treasurer, and the Secretary or an Assistant Secretary of the Company) to the Trustee to authenticate such Security and to deliver such Security in accordance with the instructions specified by such request.  Any such request shall constitute a representation and warranty by the Company that the statements made in the Officers’ Certificate delivered to the Trustee prior to the authentication and issuance of the first Security of such series are true and correct on the date thereof as if made on and as of the date thereof.
 
 
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Section 2.6         Exchange And Registration Of Transfer Of Securities .
 
(a)           Subject to Section 2.13 hereof, Securities of any series may be exchanged for one or more new Securities of such series of any authorized denominations and of a like aggregate principal amount, series and stated maturity and having the same terms and Original Issue Date or Dates.  Securities to be exchanged shall be surrendered at any of the offices or agencies to be maintained pursuant to Section 5.2 hereof, and the Trustee shall deliver in exchange therefor the Security or Securities which the Securityholder making the exchange shall be entitled to receive.
 
(b)           The Trustee shall keep, at one of said offices or agencies, a register or registers in which, subject to such reasonable regulations as it may prescribe, the Trustee shall register or cause to be registered Securities and shall register or cause to be registered the transfer of Securities as provided in this Article II.  Such register shall be in written form or in any other form capable of being converted into written form within a reasonable time.  At all reasonable times, such register shall be open for inspection by the Company.  Upon due presentment for registration of transfer of any Security at any such office or agency, the Company shall execute and the Trustee shall register, authenticate and deliver in the name of the transferee or transferees one or more new Securities of any authorized denominations and of a like aggregate principal amount, series and stated maturity and having the same terms and Original Issue Date or Dates.
 
(c)           All Securities presented for registration of transfer or for exchange, redemption or payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee and duly executed by the Holder or the attorney in fact of such Holder duly authorized in writing.
 
(d)           No service charge shall be made for any exchange or registration of transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
 
(e)           The Trustee shall not be required to exchange or register a transfer of any Securities selected, called or being called for redemption (including Securities, if any, redeemable at the option of the Holder provided such Securities are then redeemable at such Holder’s option) except, in the case of any Security to be redeemed in part, the portion thereof not to be so redeemed.
 
 
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(f)            If the principal amount, and applicable premium, of part, but not all of a Global Security is paid, then upon surrender to the Trustee of such Global Security, the Company shall execute, and the Trustee shall authenticate, deliver and register, a Global Security in an authorized denomination in aggregate principal amount equal to, and having the same terms, Original Issue Date or Dates and series as, the unpaid portion of such Global Security.
 
Section 2.7         Mutilated, Destroyed, Lost Or Stolen Securities .
 
(a)            If any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company shall execute, and upon its request the Trustee shall authenticate and deliver, a new Security of like form and principal amount and having the same terms and Original Issue Date or Dates and bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen.  In every case the applicant for a substituted Security shall furnish to the Company, the Trustee and any paying agent or Authenticating Agent such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft of a Security, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
 
(b)           The Trustee shall authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company.  Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith.  If any Security which has matured, is about to mature, has been redeemed or called for redemption shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substituted Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company, the Trustee and any paying agent or Authenticating Agent such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
 
(c)           Every substituted Security issued pursuant to this Section 2.7 by virtue of the fact that any Security is mutilated, destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not such destroyed, lost or stolen Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.  All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
 
 
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Section 2.8         Temporary Securities.   Pending the preparation of definitive Securities, the Company may execute and the Trustee shall authenticate and deliver temporary Securities (printed, lithographed or otherwise reproduced).  Temporary Securities shall be issuable in any authorized denomination and substantially in the form of the definitive Securities but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company.  Every such temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities.  Without unreasonable delay the Company shall execute and shall deliver to the Trustee definitive Securities and thereupon any or all temporary Securities shall be surrendered in exchange therefor at the corporate trust office of the Trustee, and the Trustee shall authenticate, deliver and register in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities.  Such exchange shall be made by the Company at its own expense and without any charge therefor to the Securityholders.  Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities authenticated and delivered hereunder.
 
Section 2.9         Cancellation Of Securities Paid, Etc.   All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall be surrendered to the Trustee for cancellation and promptly canceled by it and no Securities shall be issued in lieu thereof except as expressly permitted by this Indenture.  The Company’s acquisition of any Securities shall operate as a redemption or satisfaction of the indebtedness represented by such Securities and such Securities shall be surrendered by the Company to and canceled by the Trustee.
 
Section 2.10       Interest Rights Preserved.   Each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security, and each such Security shall be so dated that neither gain nor loss of interest shall result from such transfer, exchange or substitution.
 
Section 2.11       Special Record Date.   If and to the extent that the Company fails to make timely payment or provision for timely payment of interest on any series of Securities (other than on an Interest Payment Date that is a maturity date), that interest shall cease to be payable to the Persons who were the Securityholders of such series at the applicable Regular Record Date.  In that event, when moneys become available for payment of the interest, the Trustee shall (a) establish a date of payment of such interest and a Special Record Date for the payment of that interest, which Special Record Date shall be not more than 15 or fewer than 10 days prior to the date of the proposed payment and (b) mail notice of the date of payment and of the Special Record Date not fewer than 10 days preceding the Special Record Date to each Securityholder of such series at the close of business on the 15th day preceding the mailing at the address of such Securityholder, as it appeared on the register for the Securities.  On the day so established by the Trustee the interest shall be payable to the Holders of the applicable Securities at the close of business on the Special Record Date.
 
Section 2.12      Payment Of Securities.   Payment of the principal, interest and premium on all Securities shall be payable as follows:
 
 
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(a)           On or before 11:30 a.m., New York City time, of the day on which payment of principal, interest and premium is due on any Global Security pursuant to the terms thereof, the Company shall deliver to the Trustee funds available on such date sufficient to make such payment, by wire transfer of immediately available funds or by instructing the Trustee to withdraw sufficient funds from an account maintained by the Company with the Trustee or such other method as is acceptable to the Trustee and the Depository.  On or before Noon, New York City time, or such other time as shall be agreed upon between the Trustee and the Depository, of the day on which any payment of interest is due on any Global Security (other than at maturity) and following receipt of the necessary funds from the Company, the Trustee shall pay to the Depository such interest in same day funds.  On or before Noon, New York City time or such other time as shall be agreed upon between the Trustee and the Depository, of the day on which principal, interest payable at maturity and premium, if any, is due on any Global Security and following receipt of the necessary funds from the Company, the Trustee shall deposit with the Depository the amount equal to the principal, interest payable at maturity and premium, if any, by wire transfer into the account specified by the Depository.  As a condition to the payment, at maturity or upon redemption, of any part of the principal of, interest on and applicable premium of any Global Security, the Depository shall surrender, or cause to be surrendered, such Global Security to the Trustee, whereupon a new Global Security shall be issued to the Depository pursuant to Section 2.6(f) hereof.
 
(b)           With respect to any Security that is not a Global Security, principal, applicable premium and interest due at the maturity of the Security shall be payable in immediately available funds when due upon presentation and surrender of such Security at the corporate trust office of the Trustee or at the authorized office of any paying agent.  Interest on any Security that is not a Global Security (other than interest payable at maturity) shall be paid to the Holder thereof as its name appears on the register by check payable in clearinghouse funds; provided that if the Trustee receives a written request from any Holder of Securities, the aggregate principal amount of which having the same Interest Payment Date equals or exceeds $10,000,000, on or before the applicable Regular Record Date for such Interest Payment Date, interest shall be paid by wire transfer of immediately available funds to a bank within the continental United States designated by such Holder in its request or by direct deposit into the account of such Holder designated by such Holder in its request if such account is maintained with the Trustee or any paying agent.
 
Section 2.13      Securities Issuable In The Form Of A Global Security .
 
(a)           If the Company shall establish pursuant to Section 2.5 hereof that the Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 2.5 hereof and the Company Order delivered to the Trustee thereunder, authenticate and deliver such Global Security or Securities, which (i) shall represent, shall be denominated in an amount equal to the aggregate principal amount of, and shall have the same terms as, the outstanding Securities of such series to be represented by such Global Security or Securities, (ii) shall be registered in the name of the Depository or its nominee, (iii) shall be delivered by the Trustee to the Depository or pursuant to the Depository’s instruction and (iv) shall bear a legend substantially to the following effect: “This Security is a Global Security registered in the name of the Depository (referred to herein) or a nominee thereof and, unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.  Unless this Global Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York), to the trustee for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., any transfer, pledge or other use hereof for value or otherwise by or to any Person is wrongful since the registered owner hereof, Cede & Co., has an interest herein” or such other legend as may be required by the rules and regulations of the Depository.
 
 
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(b)           Notwithstanding any other provision of Section 2.6 hereof or of this Section 2.13, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual Securities, a Global Security may be transferred, in whole but not in part, only as described in the legend thereto.
 
(c)           (i)        If at any time the Depository for a Global Security notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time the Depository for the Global Security shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depository with respect to such Global Security.  If a successor Depository for such Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 2.5(c)(vii) hereof shall no longer be effective with respect to the series of Securities evidenced by such Global Security and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, shall authenticate and deliver, individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security.  The Trustee shall not be charged with knowledge or notice of the ineligibility of a Depository unless a responsible officer assigned to and working in its corporate trustee administration department shall have actual knowledge thereof.
 
(ii)           The Company may at any time and in its sole discretion determine that all outstanding (but not less than all) Securities of a series issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities.  In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities in exchange for such Global Security, shall authenticate and deliver individual Securities of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities in exchange for such Global Security or Securities.
 
(iii)           In any exchange provided for in any of the preceding two paragraphs, the Company will execute and the Trustee will authenticate and deliver individual Securities in definitive registered form in authorized denominations.  Upon the exchange of a Global Security for individual Securities, such Global Security shall be canceled by the Trustee.  Securities issued in exchange for a Global Security pursuant to this Section 2.13 shall be registered in such names and in such authorized denominations as the Depository for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.  The Trustee shall deliver such Securities to the Depository for delivery to the Persons in whose names such Securities are so registered, or if the Depository shall refuse or be unable to deliver such Securities, the Trustee shall deliver such Securities to the Persons in whose names such Securities are registered, unless otherwise agreed upon between the Trustee and the Company, in which event the Company shall cause the Securities to be delivered to the Persons in whose names such Securities are registered.
 
 
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(d)           Neither the Company, the Trustee, any Authenticating Agent nor any paying agent shall have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interest.
 
(e)           Pursuant to the provisions of this subsection, at the option of the Trustee and upon 30 days’ written notice to the Depository but not prior to the first Interest Payment Date of the respective Global Securities, the Depository shall be required to surrender any two or more Global Securities which have identical terms, including, without limitation, identical maturities, interest rates and redemption provisions (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depository a Global Security in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Securities surrendered thereto and that shall indicate each applicable Original Issue Date and the principal amount applicable to each such Original Issue Date.  The exchange contemplated in this subsection shall be consummated at least 30 days prior to any Interest Payment Date applicable to any of the Global Securities surrendered to the Trustee.  Upon any exchange of any Global Security with two or more Original Issue Dates, whether pursuant to this Section 2.13 or pursuant to Section 2.6 or Section 3.3 hereof, the aggregate principal amount of the Securities with a particular Original Issue Date shall be the same before and after such exchange, after giving effect to any retirement of Securities and the Original Issue Dates applicable to such Securities occurring in connection with such exchange.
 
Section 2.14      Deferrals of Interest Payment Dates .   If specified as contemplated by Section 2.1 or Section 2.5 with respect to the Securities of a particular series, so long as no Event of Default has occurred and is continuing with respect to such series of Securities, the Company shall have the right, at any time during the term of such series, from time to time to defer the payment of interest on such Securities for such period or periods as may be specified as contemplated by Section 2.1 or Section 2.5 (each, an “Extension Period” ) during which Extension Periods the Company shall have the right to make partial payments of interest on any Interest Payment Date.  The Company shall give the Trustee written notice of its election to make partial payments of interest at least 5 Business Days prior to the applicable Interest Payment Date.  No Extension Period shall end on a date other than an Interest Payment Date or extend beyond the stated maturity.  Except as otherwise contemplated in Section 2.1 or Section 2.5, at the end of any such Extension Period the Company shall pay all interest then accrued and unpaid on such Securities (together with Additional Interest or other interest thereon, if any, at the rate specified for the Securities of such series to the extent permitted by applicable law).
 
 
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Section 2.15       Agreed Tax Treatment .   Each Security issued hereunder shall provide that the Company and, by its acceptance of a Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, such Security agree that for United States federal, state and local tax purposes it is intended that such Security constitute indebtedness.
 
Section 2.16      CUSIP and Other Numbers .   The Company in issuing the Securities may use “CUSIP” numbers, ISIN numbers or other similar identifiers (if then generally in use), and, if so, the Trustee shall use such numbers in notices of redemption as a convenience to Holders of Securities; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in CUSIP, ISIN or other numbers assigned to the Securities.
 
ARTICLE III
REDEMPTION OF SECURITIES
 
Section 3.1         Applicability Of Article.   Such of the Securities as are, by their terms, redeemable prior to their stated maturity date at the option of the Company, may be redeemed by the Company at such times, in such amounts and at such prices as may be specified therein and in accordance with the provisions of this Article III.
 
Section 3.2         Notice Of Redemption; Selection Of Securities .
 
(a)           The election of the Company to redeem any Securities shall be evidenced by a Board Resolution which shall be given with notice of redemption to the Trustee at least 45 days (or such shorter period acceptable to the Trustee in its sole discretion) prior to the redemption date specified in such notice.
 
(b)           Notice of redemption to each Holder of Securities to be redeemed as a whole or in part shall be given by the Trustee, in the manner provided in Section 15.10 hereof, no less than 30 or more than 60 days prior to the date fixed for redemption.  Any notice which is given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Securityholder receives the notice.  In any case, failure duly to give such notice, or any defect in such notice, to the Holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
 
(c)            Each such notice shall identify the Securities to be redeemed and shall specify the date fixed for redemption, the places of redemption and the redemption price at which such Securities are to be redeemed, and shall state that payment of the redemption price of such Securities or portion thereof to be redeemed will be made upon surrender of such Securities at such places of redemption, that interest accrued (including any Additional Interest or other interest) to the date fixed for redemption will be paid as specified in such notice, and that from and after such date interest thereon shall cease to accrue.  If less than all of a series of Securities having the same terms are to be redeemed, the notice shall specify the Securities or portions thereof to be redeemed.  If any Security is to be redeemed in part only, the notice which relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that, upon surrender of such Security, a new Security or Securities having the same terms in aggregate principal amount equal to the unredeemed portion thereof will be issued.
 
 
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(d)           Unless otherwise provided by a supplemental indenture or Company Order under Section 2.5 hereof, if less than all of a series of Securities is to be redeemed, the Trustee shall select in such manner as it shall deem appropriate and fair in its discretion the particular Securities to be redeemed in whole or in part and shall thereafter promptly notify the Company in writing of the Securities so to be redeemed.  If less than all of a series of Securities represented by a Global Security is to be redeemed, the particular Securities or portions thereof of such series to be redeemed shall be selected by the Depository for such series of Securities in such manner as the Depository shall determine.  Securities shall be redeemed only in minimum denominations of $1,000 (or as otherwise specified for a series of Securities), provided that any remaining principal amount of a Security redeemed in part shall be a denomination authorized under this Indenture.
 
(e)            If at the time of the mailing of any notice of redemption the Company shall not have irrevocably directed the Trustee to apply funds deposited with the Trustee or held by it and available to be used for the redemption of Securities to redeem all the Securities called for redemption, such notice, at the election of the Company, may state that it is subject to the receipt of the redemption moneys by the Trustee before the date fixed for redemption and that such notice shall be of no effect unless such moneys are so received before such date.
 
Section 3.3         Payment Of Securities On Redemption; Deposit Of Redemption Price .
 
(a)            If notice of redemption for any Securities shall have been given as provided in Section 3.2 hereof and such notice shall not contain the language permitted at the Company’s option under Section 3.2(e) hereof, such Securities or portions of Securities called for redemption shall become due and payable on the date and at the places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption of such Securities.  Interest on the Securities or portions thereof so called for redemption shall cease to accrue and such Securities or portions thereof shall be deemed not to be entitled to any benefit under this Indenture except to receive payment of the redemption price together with interest accrued thereon to the date fixed for redemption or as provided in Article IV.  Upon presentation and surrender of such Securities at such a place of payment in such notice specified, such Securities or the specified portions thereof shall be paid and redeemed at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption.
 
(b)            If notice of redemption shall have been given as provided in Section 3.2 hereof and such notice shall contain the language permitted at the Company’s option under Section 3.2(e) hereof, such Securities or portions of Securities called for redemption shall become due and payable on the date and at the places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption of such Securities, and interest on the Securities or portions thereof so called for redemption shall cease to accrue and such Securities or portions thereof shall be deemed not to be entitled to any benefit under this Indenture except to receive payment of the redemption price together with interest accrued thereon to the date fixed for redemption; provided that, in each case, the Company shall have deposited with the Trustee or a paying agent on or prior to such redemption date an amount sufficient to pay the redemption price together with interest accrued to the date fixed for redemption.  Upon the Company making such deposit and, upon presentation and surrender of such Securities at such a place of payment in such notice specified, such Securities or the specified portions thereof shall be paid and redeemed at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption.  If the Company shall not make such deposit on or prior to the redemption date, the notice of redemption shall be of no force and effect and the principal on such Securities or specified portions thereof shall continue to bear interest as if the notice of redemption had not been given.
 
 
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(c)            No notice of redemption of Securities shall be mailed during the continuance of any Event of Default, except (i) that, when notice of redemption of any Securities has been mailed, the Company shall redeem such Securities but only if funds sufficient for that purpose have prior to the occurrence of such Event of Default been deposited with the Trustee or a paying agent for such purpose, and (ii) that notices of redemption of all outstanding Securities may be given during the continuance of an Event of Default.
 
(d)           Upon surrender of any Security redeemed in part only, the Company shall execute, and the Trustee shall authenticate, deliver and register, a new Security or Securities of authorized denominations in aggregate principal amount equal to, and having the same terms, Original Issue Date or Dates and series as, the unredeemed portion of the Security so surrendered.
 
ARTICLE IV
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
 
Section 4.1         Satisfaction and Discharge of Indenture .  If at any time:
 
(a)            the Company shall have paid or caused to be paid the principal of and premium, if any, and interest on all the outstanding Securities of any series, as and when the same shall have become due and payable;
 
(b)           the Company shall have delivered to the Trustee for cancellation all outstanding Securities of such series; or
 
 
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(c)            the Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds the entire amount in (i) cash, (ii) U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as will insure the availability of cash, or (iii) a combination of cash and U.S. Government Obligations, in any case sufficient, without reinvestment, as certified by an independent public accounting firm of national reputation in a written certification delivered to the Trustee, to pay at maturity or the applicable redemption date (provided that notice of redemption shall have been duly given or irrevocable provision satisfactory to the Trustee shall have been duly made for the giving of any notice of redemption) all outstanding Securities of such series, including principal and any premium and interest due or to become due to such date of maturity, as the case may be and, unless all outstanding Securities of such series are to be due within 90 days of such deposit by redemption or otherwise, shall also deliver to the Trustee an Opinion of Counsel to the effect that the Company has received from, or there has been published by, the Internal Revenue Service a ruling or similar pronouncement by the Internal Revenue Service or that there has been a change of law, in either case to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or discharge of the Indenture and holders will be subject to tax in the same manner, in the same amounts and at the same time as would have been the case absent such defeasance, and if, in any such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (A) rights of registration of transfer and exchange of Securities of such series, (B) substitution of mutilated, defaced, destroyed, lost or stolen Securities of such series, (C) rights of Holders of Securities of such series to receive payments of principal thereof, and any premium and interest thereon, upon the original stated due dates therefor or upon the applicable redemption date (but not upon acceleration of maturity) from the moneys and U.S. Government Obligations held by the Trustee pursuant to Section 4.2 hereof, (D) the rights and immunities of the Trustee hereunder, (E) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, (F) the obligations and rights of the Trustee and the Company under Section 4.4 hereof, and (G) the duties of the Trustee with respect to any of the foregoing), and the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and its obligations under, the Securities of such series, and the Trustee, on demand of the Company and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to the Securities of such series and the Trustee shall at the request of the Company return to the Company all property and money held by it under this Indenture with respect to the Securities of such series and determined by it from time to time in accordance with the certification pursuant to this Section 4.1(c) to be in excess of the amount required to be held under this Section 4.1.
 
If the Securities of such series are deemed to be paid and discharged pursuant to Section 4.1(c) hereof, within 15 days after such Securities are so deemed to be paid and discharged, the Trustee shall cause a written notice provided by the Company to be given to each Holder in the manner provided by Section 15.10 hereof. The notice shall: (i) state that such Securities are deemed to be paid and discharged; (ii) set forth a description of any U.S. Government Obligations and cash held by the Trustee as described above; and (iii) if any such Securities will be called for redemption, specify the date or dates on which such Securities are to be called for redemption.
 
Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any or all series, the obligations of the Company to the Trustee under Section 8.6 hereof shall survive.
 
Section 4.2         Deposited Moneys To Be Held In Trust By Trustee .  All moneys and U.S. Government Obligations deposited with the Trustee pursuant to Section 4.1 hereof, shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys and U.S. Government Obligations have been deposited with the Trustee of all sums due and to become due thereon for principal and premium, if any, and interest.
 
 
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Section 4.3        Paying Agent To Repay Moneys Held .  Upon the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent for such Securities (other than the Trustee) shall, upon written demand by an Authorized Agent, be repaid to the Company or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys.
 
Section 4.4         Return Of Unclaimed Moneys .  Subject to the requirements of applicable law, any moneys deposited with or paid to the Trustee for payment of the principal of or any premium or interest on any Securities and not applied but remaining unclaimed by the Holders of such Securities for two years after the date upon which the principal of or any premium or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand by an Authorized Agent, and all liability of the Trustee shall thereupon cease; and any Holder of any of such Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect.
 
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
 
Section 5.1         Payment Of Principal, Premium And Interest.   The Company covenants and agrees for the benefit of the Holders of the Securities of any series that it will duly and punctually pay or cause to be paid the principal of and any premium and interest (including any Additional Interest) on such Securities at the places, at the respective times and in the manner provided in such Securities or in this Indenture.
 
Section 5.2         Office For Notices And Payments, Etc.   So long as any of the Securities of any series remain outstanding, the Company at its option may cause to be maintained in the Borough of Manhattan, the City and State of New York, or elsewhere, an office or agency where the Securities of such series may be presented for registration of transfer and for exchange as in this Indenture provided, and where, at any time when the Company is obligated to make a payment of principal and premium upon such Securities, the Securities of such series may be surrendered for payment, and may maintain at any such office or agency and at its principal office an office or agency where notices and demands to or upon the Company in respect of such Securities or of this Indenture may be served.  The designation of any such office or agency shall be made by Company Order pursuant to Section 2.5 hereof or at any subsequent time pursuant to this Section 5.2 hereof.  The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof.  If the Company shall fail to give such notice of the location or of any change in the location of any such office or agency, presentations may be made and notices and demands may be served at the corporate trust office of the Trustee.
 
Section 5.3         Appointments To Fill Vacancies In Trustee’s Office.   The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 8.11 hereof, a Trustee, so that there shall at all times be a Trustee hereunder.
 
 
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Section 5.4         Provision As To Paying Agent.   The Trustee shall be the paying agent for the Securities and, at the option of the Company, the Company may appoint additional paying agents (including without limitation itself).  Whenever the Company shall appoint an additional paying agent, it shall cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to this Section 5.4:
 
(1)       that it will hold in trust for the benefit of the Holders and the Trustee all sums held by it as such agent for the payment of the principal of and any premium or interest on the Securities (whether such sums have been paid to it by the Company or by any other obligor on such Securities) in trust for the benefit of the Holders of such Securities;
 
(2)       that it will give to the Trustee notice of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of and any premium or interest on such Securities when the same shall be due and payable; and
 
(3)       that it will at any time during the continuance of any such failure, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent.
 
If the Company shall act as its own paying agent with respect to any series of Securities, it will, on or before each due date of the principal of and any premium or interest on such Securities, set aside, segregate and hold in trust for the benefit of the Holders of such Securities a sum sufficient to pay such principal and any premium or interest so becoming due and will notify the Trustee of any failure by it to take such action and of any failure by the Company (or by any other obligor on such Securities) to make any payment of the principal of and any premium or interest on such Securities when the same shall become due and payable.
 
Whenever the Company shall have one or more paying agents, it will, on or prior to each due date of the principal of (and premium, if any) or interest, if any, on any series of Securities, deposit with such paying agent a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, if any, and (unless such paying agent is the Trustee) the Company shall promptly notify the Trustee of any failure on its part to so act.
 
Anything in this Section 5.4 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any paying agent hereunder, as required by this Section 5.4, such sums to be held by the Trustee upon the trusts herein contained.
 
Anything in this Section 5.4 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.4 is subject to Sections 4.3 and 4.4 hereof.
 
Section 5.5         Certificates And Notice To Trustee.   The Company shall, on or before           of each year, beginning in [___________], deliver to the Trustee a certificate from its principal executive officer, principal financial officer, principal accounting officer, treasurer or assistant treasurer covering the preceding calendar year and stating whether or not, to the knowledge of such party, the Company has complied with all conditions and covenants under this Indenture, and, if not, describing in reasonable detail any failure by the Company to comply with any such conditions or covenants.  For purposes of this Section 5.5, compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
 
 
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ARTICLE VI
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
 
Section 6.1         Securityholder Lists .
 
(a)           The Company shall furnish or cause to be furnished to the Trustee semiannually, not later than the earlier to occur of (i) five days after each Regular Record Date for each Interest Payment Date that is not a maturity date and (ii) the Business Day prior to such Interest Payment Date, and at such other times as such Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require containing all the information in the possession or control of the Company, or any paying agents other than the Trustee, as to the names and addresses of the Holders of Securities, obtained since the date as of which the next previous list, if any, was furnished.  Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished or caused to be furnished and need not include information received after such date; provided that as long as the Trustee is the registrar for the Securities, no such list shall be required to be furnished.  The Trustee shall preserve any list provided to it pursuant to this Section 6.1 until such time as the Company or any paying agent, as applicable, shall provide it with a more recent list.
 
(b)           Within five Business Days after the receipt by the Trustee of a written application by any three or more Holders stating that the applicants desire to communicate with other Holders with respect to their rights under the Indenture or under the Securities, and accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, and by reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, the Trustee shall, at its election, either:
 
(1)       afford to such applicants access to all information furnished to or received by the Trustee pursuant to Section 6.1(a) hereof or, if applicable, in its capacity as registrar to the Securities; or
 
(2)       inform such applicants as to the approximate number of Holders according to the most recent information furnished to or received by the Trustee under Section 6.1(a) hereof or if applicable in its capacity as registrar for the Securities, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
 
 
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If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of Securities a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing, unless within five Business Days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders or would be in violation of applicable law.  Such written statement shall specify the basis of such opinion.  If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
 
(c)           Every Holder of a Security, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any paying agent nor any Authenticating Agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with this Section 6.1, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under this Section 6.1.
 
Section 6.2         Securities And Exchange Commission Reports .
 
The Company shall:
 
(a)            file with the Trustee, within 15 days after the Company has filed the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
 
(b)           file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations, including, in the case of annual reports, if required by such rules and regulations, certificates or opinions of independent public accountants, conforming to the requirements of Section 15.5, as to compliance with conditions or covenants, compliance with which is subject to verification by accountants; and
 
 
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(c)           transmit by mail to all Holders, as their names and addresses appear in the register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section 6.2 as may be required by rules and regulations prescribed from time to time by the Commission.
 
Section 6.3         Reports By The Trustee .
 
(a)           Within 60 days after July 15 of each year, beginning with the July 15 after the first issuance of Securities hereunder, the Trustee shall transmit by mail a brief report dated as of such date that complies with Section 313(a) of the TIA (to the extent required by such Section).
 
(b)           The Trustee shall from time to time transmit by mail brief reports that comply, both in content and date of delivery, with Section 313(b) of the TIA (to the extent required by such Section).
 
(c)           A copy of each such report filed pursuant to this Section 6.3 shall, at the time of such transmission to such Holders, be filed by the Trustee with each securities exchange upon which any Securities are listed and also with the Commission.  The Company will notify the Trustee promptly upon the listing of such Securities on any securities exchange.
 
(d)           Reports pursuant to this Section 6.3 shall be transmitted:
 
(1)       by mail to all Holders of Securities, as their names and addresses appear in the register for the Securities;
 
(2)       by mail to such Holders of Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for such purpose;
 
(3)       by mail, except in the case of reports pursuant to Section 6.3(b) and (c) hereof, to all Holders of Securities whose names and addresses have been furnished to or received by the Trustee pursuant to Section 6.1 hereof; and
 
(4)       at the time such report is transmitted to the Holders of the Securities, to each securities exchange on which Securities are listed and also with the Commission.
 
ARTICLE VII
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
 ON EVENTS OF DEFAULT
 
Section 7.1         Events Of Default .
 
(a)            If one or more of the following Events of Default with respect to the Securities of any series shall have occurred and be continuing:
 
(1)       default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days (subject to the deferral of any due date in the case of an Extension Period);
 
 
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(2)       default in the payment of the principal of or any premium on any of the Securities of such series as and when the same shall become due and payable and continuance of such default for five days;
 
(3)       failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained in the Securities of such series or in this Indenture (other than a covenant or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee by registered mail, or to the Company and the Trustee by the Holders of at least 33% in aggregate principal amount of the Securities of such series at the time outstanding;
 
(4)       the entry of a decree or order by a court having jurisdiction over the Company for relief in respect of the Company under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official of the Company or of any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
 
(5)       the filing by the Company with respect to itself or its property of a petition or answer or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the consent by it to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Company or of any substantial part of its property, or the failure of the Company generally to pay its debts as such debts become due, or the taking of corporate action by the Company to effectuate any such action; or
 
(6)       any other Event of Default specified with respect to Securities of any series pursuant to Section 2.5 hereof;
 
then and in each and every such case, unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities of such series then outstanding, by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal of all the Securities of such series to be due and payable immediately and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding.
 
 
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The foregoing paragraph, however, is subject to the condition that if, at any time after the principal of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, (i) the Holders of a majority in aggregate principal amount of the Securities of such series then outstanding, by notice in writing to the Trustee, rescind an acceleration and (ii) the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all of the Securities of such series and the principal of and any premium on any and all Securities of such series which shall have become due otherwise than by acceleration (with interest on overdue installments of interest, to the extent that payment of such interest is enforceable under applicable law, and on such principal and applicable premium at the rate borne by the Securities of such series to the date of such payment or deposit) and all sums paid or advanced by the Trustee hereunder, the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.6 hereof, and any and all defaults under this Indenture, other than the non-payment of principal of and accrued interest on Securities of such series which shall have become due solely by acceleration of maturity, shall have been cured or waived, then and in every such case such Holders’ rescission or payment or deposit shall cause an automatic waiver of the Event of Default and its consequences and shall cause an automatic rescission and annulment of the acceleration of the Securities of such series; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
 
(b)           If the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceeding had been taken.
 
Section 7.2         Payment Of Securities On Default; Suit Therefor .
 
(a)           The Company covenants with respect to the Securities of any series that in case of:
 
(1)       default in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days (subject to the deferral of any due date in the case of an Extension Period); or
 
(2)       default in the payment of the principal of or any premium on any of the Securities of such series as and when the same shall have become due and payable whether at the stated maturity thereof, upon redemption thereof (provided that such redemption is not conditioned upon the deposit of sufficient moneys for such redemption), upon declaration of acceleration or otherwise,
 
then, upon demand of the Trustee, the Company shall pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have so become due and payable on all such Securities for principal and any premium or interest, or both, as the case may be, with interest upon the overdue principal and any premium and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest at the rate borne by such Securities; and, in addition thereto, such further amounts as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, any expenses or liabilities incurred by the Trustee hereunder other than through its negligence or bad faith, and any other amounts due the Trustee under Section 8.6 hereof.
 
 
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(b)           If the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may enforce any such judgment or final decree against the Company or any other obligor on such Securities and collect in the manner provided by law out of the property of the Company or any other obligor on such Securities wherever situated, the moneys adjudged or decreed to be payable.
 
(c)            If there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities under the United States Bankruptcy Code or any other applicable law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any similar judicial proceedings relative to the Company or other obligor upon the Securities, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to this Section 7.2, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and any premium and interest owing and unpaid in respect of the Securities, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any amounts due to the Trustee under Section 8.6 hereof) and of the Holders of Securities allowed in such judicial proceedings relative to the Company or any other obligor on the Securities, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses.
 
(d)           All claims and rights of action under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken.
 
(e)           Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent or to accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
 
 
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Section 7.3         Application Of Moneys Collected By Trustee.   Any moneys or properties collected by the Trustee with respect to any of the Securities pursuant to this Article shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Securities, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid.
 
FIRST:  To the payment of all amounts due to the Trustee pursuant to Section 8.6 hereof;
 
SECOND:  If the principal of the outstanding Securities in respect of which such moneys have been collected shall not have become due and be unpaid, to the payment of interest on the Securities, in the order of the maturity of the installments of such interest, with interest (to the extent allowed by law and to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate borne by the Securities, such payments to be made ratably to the Persons entitled thereto, and then to the payment to the Holders entitled thereto of the unpaid principal of and applicable premium on any of the Securities which shall have become due (other than Securities previously called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), whether at stated maturity or by redemption, in the order of their due dates, beginning with the earliest due date, and if the amount available is not sufficient to pay in full all Securities due on any particular date, then to the payment thereof ratably, according to the amounts of principal and applicable premium due on that date, to the Holders entitled thereto, without any discrimination or privilege;
 
THIRD:  If the principal of the outstanding Securities in respect of which such moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities for principal and any premium and interest thereon, with interest on the overdue principal and any premium and (to the extent allowed by law and to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate borne by the Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities, then to the payment of such principal and any premium and interest without preference or priority of principal and any premium over interest, or of interest over principal and any premium or of any installment of interest over any other installment of interest, or of any Security over any other Security, ratably to the aggregate of such principal and any premium and accrued and unpaid interest; and
 
FOURTH:  to the payment of the remainder, if any, to the Company or its successors or assigns, or to whomsoever may lawfully be entitled to the same, or as a court of competent jurisdiction may determine.
 
Section 7.4         Proceedings By Securityholders .
 
(a)           No Holder of any Security shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default with respect to such Security and of the continuance thereof, as hereinabove provided, and unless also Securityholders of a majority in aggregate principal amount of the Securities of such series then outstanding affected by such Event of Default shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding.
 
 
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(b)           Notwithstanding any other provision in this Indenture, however, the rights of any Holder of any Security to receive payment of the principal of and any premium and interest on such Security, on or after the respective due dates expressed in such Security or on the applicable redemption date, or to institute suit for the enforcement of any such payment on or after such respective dates shall not be impaired or affected without the consent of such Holder.
 
Section 7.5        Proceedings By Trustee.   In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture, by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted to it under this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
 
Section 7.6        Remedies Cumulative And Continuing.   All powers and remedies given by this Article VII to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any powers and remedies hereof or of any other powers and remedies available to the Trustee or the Holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities in exercising any right or power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to Section 7.4 hereof, every power and remedy given by this Article VII or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
 
Section 7.7         Direction Of Proceedings And Waiver Of Defaults By Majority Of Securityholders.   The Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to such Securities; provided, that (subject to Section 8.1 hereof) the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel determines that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers shall determine that the action or proceeding so directed would involve the Trustee in personal liability or would be unduly prejudicial to the rights of Securityholders not joining in such directions.  The Holders of a majority in aggregate principal amount of the Securities of any series at the time outstanding may on behalf of all of the Holders of the Securities of such series waive any past default or Event of Default hereunder and its consequences except a default in the payment of principal of or any premium or interest on the Securities of such series.  Upon any such waiver the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.  Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 7.7, said default or Event of Default shall for all purposes of the Securities of such series and this Indenture be deemed to have been cured and to be not continuing.
 
 
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Section 7.8         Notice Of Default.   The Trustee shall, within 90 days after the occurrence of a default, give to all Holders of the Securities of such series, in the manner provided in Section 15.10, notice of such default, unless such default shall have been cured before the giving of such notice, the term “default” for the purpose of this Section 7.8 being hereby defined to be any event which is or after notice or lapse of time or both would become an Event of Default; provided that, except in the case of default in the payment of the principal of or any premium or interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installments, the Trustee shall be protected in withholding such notice if and so long as its board of directors or trustees, executive committee, or a trust committee of directors or trustees or responsible officers in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities of such series.
 
Section 7.9         Undertaking To Pay Costs.   All parties to this Indenture agree, and each Holder of any Security by acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but this Section 7.9 shall not apply to any suit instituted by the Trustee, or to any suit instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than 10% in principal amount of the Securities or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the due date expressed in such Security or the applicable redemption date.
 
ARTICLE VIII
CONCERNING THE TRUSTEE
 
Section 8.1         Duties And Responsibilities Of Trustee .
 
(a)           The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  If an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
 
 
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(b)           No provisions of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
(1)       prior to the occurrence of any Event of Default and after the curing or waiving of all Events of Default which may have occurred:
 
(A)       the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
 
(B)        in the absence of bad faith on the part of the Trustee, the 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 Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture;
 
(2)       the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer or officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(3)       the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with Section 7.7 hereof relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred upon the Trustee under this Indenture.
 
Section 8.2         Reliance On Documents, Opinions, Etc .  Except as otherwise provided in Section 8.1 hereof:
 
(a)            the Trustee may rely and shall be protected in acting upon or refraining from acting at the direction of any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
 
(b)           any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof is herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
 
(c)            the Trustee may consult with counsel and any advice or Opinion of Counsel 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 of Counsel;
 
 
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(d)            the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred by such exercise;
 
(e)            the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
 
(f)            prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the 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, consent, order, approval, note or other paper or document, unless requested in writing to do so by the Holders of at least a majority in principal amount of the then outstanding Securities of any series; provided that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by this Indenture, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding;
 
(g)           no provision of this Indenture shall require the Trustee to extend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and
 
(h)           the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys; provided that the Trustee shall not be liable for the conduct or acts of any such agent or attorney that shall have been appointed in accordance herewith with due care.
 
Section 8.3         No Responsibility For Recitals, Etc.   The recitals contained herein and in the Securities (except in the certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.  The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.  The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with this Indenture.  The Trustee shall not be responsible for recording or filing this Indenture, any supplemental indenture, or any financing or continuation statement in any public office at any time or times.
 
Section 8.4         Trustee, Authenticating Agent, Paying Agent Or Registrar May Own Securities.   The Trustee and any Authenticating Agent or paying agent in its individual or other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Authenticating Agent or paying agent.
 
 
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Section 8.5         Moneys To Be Held In Trust.   Subject to Section 4.4 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.  The Trustee may allow and credit to the Company interest on any money received hereunder at such rate, if any, as may be agreed upon by the Company and the Trustee from time to time as may be permitted by law.
 
Section 8.6         Compensation And Expenses Of Trustee.   The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the parties shall agree in writing from time to time for all services rendered to it herein (which compensation shall not be limited by any law in regard to the compensation of a trustee of an express trust), and the Company shall pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and agents, including any Authenticating Agents, and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith.  The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability.  The obligations of the Company under this Section 8.6 to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.  Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of any particular Securities.
 
Section 8.7        Officers’ Certificate As Evidence.   Whenever in the administration of this Indenture, the Trustee shall deem it necessary or desirable that a matter be proved or established prior to the taking, suffering or omitting of any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under this Indenture in reliance thereon.
 
Section 8.8         Conflicting Interest Of Trustee.   The Trustee shall be subject to and shall comply with the provisions of Section 310 of the TIA;
 
 
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Section 8.9         Existence And Eligibility Of Trustee.   There shall at all times be a Trustee hereunder which Trustee shall at all times be a corporation organized and doing business under the laws of the United States or any State thereof or of the District of Columbia (or a corporation or other Person permitted to act as trustee by the Commission), subject to supervision or examination by such bodies and authorized under such laws to exercise corporate trust powers and having a combined capital and surplus of at least $150,000,000.  If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid authority, then for the purposes of this Section 8.9, the combined capital and surplus shall be deemed to be as set forth in its most recent report of condition so published.  No obligor upon the Securities or Person directly or indirectly controlling, controlled by, or under common control with such obligor shall serve as Trustee.  If at any time the Trustee shall cease to be eligible in accordance with this Section 8.9, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.10 hereof.
 
Section 8.10      Resignation Or Removal Of Trustee .
 
(a)            Pursuant to the provisions of this Article, the Trustee may at any time resign with respect to Securities of any series and be discharged of the trusts with respect to such Securities created by this Indenture by giving written notice to the Company specifying the day upon which such resignation shall take effect, and such resignation shall take effect immediately upon the later of the appointment of a successor trustee and such day.
 
(b)           Any Trustee with respect to Securities of any series may be removed at any time by an instrument or concurrent instruments in writing filed with such Trustee and signed and acknowledged by the Holders of a majority in principal amount of the then outstanding Securities of such series or by their attorneys in fact duly authorized.
 
(c)           So long as no Event of Default has occurred and is continuing, and no event has occurred and is continuing that, with the giving of notice or the lapse of time or both, would become an Event of Default, the Company may remove any Trustee with respect to Securities of any series upon written notice to the Holder of each outstanding Security of such series and the Trustee.
 
(d)           If at any time (1) the Trustee shall cease to be eligible in accordance with Section 8.9 hereof and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder for at least six months, (2) the Trustee shall fail to comply with Section 8.8 hereof after written request therefor by the Company or any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Trustee may be removed forthwith by an instrument or concurrent instruments in writing filed with the Trustee and either:
 
(1)       signed by the President or any Vice President of the Company and attested by the Secretary or an Assistant Secretary of the Company; or
 
 
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(2)       signed and acknowledged by the Holders of a majority in principal amount of outstanding Securities of any series for which the Trustee is acting as trustee or by their attorneys in fact duly authorized.
 
(e)           Any resignation or removal of the Trustee shall not become effective until acceptance of appointment by the successor Trustee as provided in Section 8.11 hereof.
 
Section 8.11      Appointment Of Successor Trustee .
 
(a)           If at any time the Trustee shall resign or be removed, the Company, by a Board Resolution, shall promptly appoint a successor Trustee.
 
(b)           The Company shall provide written notice of its appointment of a successor Trustee to the Holder of each outstanding Security for any series for which such successor Trustee is acting as trustee following any such appointment.
 
(c)           If no appointment of a successor Trustee shall be made pursuant to Section 8.11(a) hereof within 60 days after appointment shall be required, any Holder of Securities of such series or the resigning Trustee may apply to any court of competent jurisdiction to appoint a successor Trustee.  Said court may thereupon after such notice, if any, as such court may deem proper and prescribe, appoint a successor Trustee.
 
(d)           Any Trustee appointed under this Section 8.11 as a successor Trustee shall be a bank or trust company eligible under Section 8.9 hereof and qualified under Section 8.8 hereof.
 
Section 8.12       Acceptance By Successor Trustee .
 
(a)           Any successor Trustee appointed as provided in Section 8.11 hereof shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any amounts then due it pursuant to Section 8.6 hereof, execute and deliver an instrument transferring to such successor Trustee all the rights and powers of the Trustee so ceasing to act.  Upon request of any such successor Trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm to such successor Trustee all such rights and powers.  Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to Section 8.6 hereof.
 
(b)           No successor Trustee shall accept appointment as provided in this Section 8.12 unless at the time of such acceptance such successor Trustee shall be qualified under Section 8.8 hereof and eligible under Section 8.9 hereof.
 
 
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(c)           Upon acceptance of appointment by a successor Trustee as provided in this Section 8.12, the successor Trustee shall mail notice of its succession hereunder to all Holders of Securities as the names and addresses of such Holders appear on the registry books.
 
Section 8.13      Succession By Merger, Etc .
 
(a)           Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided such corporation shall be otherwise qualified and eligible under this Article.
 
(b)           If at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificates of the Trustee shall have; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
 
Section 8.14      Limitations On Rights Of Trustee As A Creditor.   The Trustee shall be subject to, and shall comply with, the provisions of Section 311 of the TIA.
 
Section 8.15       Authenticating Agent .
 
(a)           There may be one or more Authenticating Agents appointed by the Trustee with the written consent of the Company, with power to act on its behalf and subject to the direction of the Trustee in the authentication and delivery of Securities in connection with transfers and exchanges under Sections 2.6, 2.7, 2.8, 2.13, 3.3, and 12.4 hereof, as fully to all intents and purposes as though such Authenticating Agents had been expressly authorized by those Sections to authenticate and deliver Securities.  For all purposes of this Indenture, the authentication and delivery of Securities by any Authenticating Agent pursuant to this Section 8.15 shall be deemed to be the authentication and delivery of such Securities “by the Trustee.” Any such Authenticating Agent shall be a bank or trust company or other Person of the character and qualifications set forth in Section 8.9 hereof.
 
(b)           Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section 8.15, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authenticating Agent or such successor corporation.
 
 
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(c)           Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible under this Section 8.15, the Trustee may, with the written consent of the Company, appoint a successor Authenticating Agent, and upon so doing shall give written notice of such appointment to the Company and shall mail, in the manner provided in Section 15.10, notice of such appointment to the Holders of Securities.
 
(d)           The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments, in accordance with Section 8.6 hereof.
 
(e)           Sections 8.2, 8.3, 8.6, 8.7 and 8.9 hereof shall be applicable to any Authenticating Agent.
 
ARTICLE IX
CONCERNING THE SECURITYHOLDERS
 
Section 9.1         Action By Securityholders.   Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any series may take any action, the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed in writing, (b) by the record of such Securityholders voting in favor thereof at any meeting of Securityholders duly called and held in accordance with Article X hereof, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
 
Section 9.2         Proof Of Execution By Securityholders .
 
(a)           Subject to Sections 8.1, 8.2 and 10.5 hereof, proof of the execution of any instruments by a Securityholder or the agent or proxy for such Securityholder shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The ownership of Securities shall be proved by the register for the Securities maintained by the Trustee.
 
(b)           The record of any Securityholders’ meeting shall be proven in the manner provided in Section 10.6 hereof.
 
Section 9.3         Who Deemed Absolute Owners.   Subject to Sections 2.4(f) and 9.1 hereof, the Company, the Trustee, any paying agent and any Authenticating Agent shall deem the Person in whose name any Security shall be registered upon the register for the Securities to be, and shall treat such Person as, the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment of or on account of the principal and premium, if any, and interest on such Security, and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Authenticating Agent shall be affected by any notice to the contrary.  All such payments shall be valid and effectual to satisfy and discharge the liability upon any such Security to the extent of the sum or sums so paid.
 
 
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Section 9.4         Company-Owned Securities Disregarded.   In determining whether the Holders of the requisite aggregate principal amount of outstanding Securities of any series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that, for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities which the Trustee knows are so owned shall be so disregarded.  Securities so owned which have been pledged in good faith to third parties may be regarded as outstanding for the purposes of this Section 9.4 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to take action with respect to such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.  In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
 
Section 9.5         Revocation Of Consents; Future Holders Bound.   Except as may be otherwise required in the case of a Global Security by the applicable rules and regulations of the Depository, at any time prior to the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any series specified in this Indenture in connection with such action, any Holder of a Security, which has been included in the Securities the Holders of which have consented to such action, may, by filing written notice with the Trustee at the corporate trust office of the Trustee and upon proof of ownership as provided in Section 9.2(a) hereof, revoke such action so far as it concerns such Security.  Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange, substitution or upon registration of transfer therefor, irrespective of whether or not any notation thereof is made upon such Security or such other Securities.
 
Section 9.6         Record Date For Securityholder Acts.   If the Company shall solicit from the Securityholders any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purpose of determining whether Holders of the requisite aggregate principal amount of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the outstanding Securities shall be computed as of the record date; provided that no such request, demand, authorization, direction, notice, consent, waiver or other act by the Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to this Indenture not later than six months after the record date.  Any such record date shall be at least 30 days prior to the date of the solicitation to the Securityholders by the Company.
 
 
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ARTICLE X
SECURITYHOLDERS’ MEETING
 
Section 10.1       Purposes Of Meetings.   A meeting of Securityholders may be called at any time and from time to time pursuant to this Article X for any of the following purposes:
 
(a)            to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to Article VII;
 
(b)            to remove the Trustee pursuant to Article VIII;
 
(c)            to consent to the execution of an indenture or indentures supplemental hereto pursuant to Section 12.2 hereof; or
 
(d)            to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of any series, as the case may be, under any other provision of this Indenture or under applicable law.
 
Section 10.2      Call Of Meetings By Trustee.   The Trustee may at any time call a meeting of Holders of Securities to take any action specified in Section 10.1 hereof, to be held at such time and at such place as the Trustee shall determine.  Notice of every such meeting of Securityholders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given to Holders of the Securities that may be affected by the action proposed to be taken at such meeting in the manner provided in Section 15.10 hereof.  Such notice shall be given not less than 20 nor more than 90 days prior to the date fixed for such meeting.
 
Section 10.3      Call Of Meetings By Company Or Securityholders.   If at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the Securities of all series then outstanding, shall have requested the Trustee to call a meeting of Securityholders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Securityholders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 10.1 hereof, by giving notice thereof as provided in Section 10.2 hereof.
 
Section 10.4       Qualifications For Voting.   To be entitled to vote at any meetings of Securityholders a Person shall (a) be a Holder of one or more Securities affected by the action proposed to be taken or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Securities.  The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives (including employees) of the Trustee and its counsel and any representatives (including employees) of the Company and its counsel.
 
 
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Section 10.5       Regulations .
 
(a)            Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
 
(b)           The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by the Securityholders as provided in Section 10.3 hereof, in which case the Company or Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by the Holders of a majority in aggregate principal amount of the Securities present in person or by proxy at the meeting.
 
(c)           Subject to Section 9.4 hereof, at any meeting each Securityholder or proxy qualified to vote pursuant to Section 10.4 shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by such Securityholder (and proportional fractional votes for principal amounts less than $1,000); provided that no vote shall be cast or counted at any meeting in respect of any Security ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting shall have no right to vote other than by virtue of Securities held by such chairman or instruments in writing as aforesaid duly designating such chairman as the person to vote on behalf of other Securityholders.  At any meeting of Securityholders duly called pursuant to Section 10.2 or 10.3 hereof, the presence of Persons holding or representing Securities in an aggregate principal amount sufficient to take action on any business for the transaction for which such meeting was called shall constitute a quorum.  Any meeting of Securityholders duly called pursuant to Section 10.2 or 10.3 hereof may be adjourned from time to time by the Holders of a majority in aggregate principal amount of the Securities present in person or by proxy at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
 
Section 10.6       Voting.   The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities or of their representatives by proxy and the principal amount of Securities held or represented by them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.  A record in duplicate of the proceedings of such meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 10.2 hereof.  The record shall show the aggregate principal amount of the Securities voting in favor of or against any resolution.  The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee and the Trustee shall have the ballots taken at the meeting attached to such duplicate.  Any record so signed and verified shall be conclusive evidence of the matters therein stated.
 
 
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Section 10.7       Rights Of Trustee Or Securityholders Not Delayed.   Nothing in this Article X shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Securities under any of the provisions of this Indenture or of the Securities.
 
ARTICLE XI
CONSOLIDATION, MERGER, SALE, TRANSFER OR OTHER DISPOSITION
 
Section 11.1      Company May Consolidate, Etc.  Only On Certain Terms.   The Company shall not consolidate with or merge into any other corporation or sell, or otherwise dispose all or substantially all of its assets unless (i) the corporation formed by such consolidation or into which the Company is merged or the Person which receives all or substantially all of the assets pursuant to such sale, transfer or other disposition shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and premium and interest on all of the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed and (ii) the Company or such successor corporation or Person, as the case may be, shall not, immediately after such consolidation or merger, or such sale or disposition, be in default in the performance of any such covenant.  Notwithstanding the foregoing, however, even if a sale, transfer or disposition of the Company’s non-utility subsidiaries might otherwise be deemed a sale of “ all or substantially all of its assets ,” for purposes of this Article X, such a sale, transfer or disposition of the Company’s non-utility subsidiaries will not be deemed a sale of “ all or substantially all of its assets ,” if, immediately following such sale, transfer or disposition the Securities are rated by Standard & Poor’s Ratings Group and by Moody’s Investors Service, Inc.  at least as high as the ratings accorded the Securities immediately prior to the sale, transfer or disposition.
 
Section 11.2      Successor Corporation Substituted.   Upon any consolidation or merger, or any sale, transfer or other disposition of all or substantially all of the assets of the Company in accordance with Section 11.1 hereof, the successor corporation formed by such consolidation or into which the Company is merged or to which such sale, transfer or other disposition is made shall succeed to, and be substituted for and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein and the Company shall be released from all obligations hereunder.
 
 
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ARTICLE XII
SUPPLEMENTAL INDENTURES
 
Section 12.1    Supplemental Indentures Without Consent Of Securityholders
 
(a)           The Company, when authorized by Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
 
(1)       to make such provision in regard to matters or questions arising under this Indenture as may be necessary or desirable, and not inconsistent with this Indenture or prejudicial to the interests of the Holders, for the purpose of supplying any omission, curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision;
 
(2)       to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security outstanding created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision or such change or elimination is applicable only to Securities issued after the effective date of such change or elimination;
 
(3)       to establish the form of Securities as permitted by Section 2.1 hereof or to establish or reflect any terms of any Security determined pursuant to Section 2.5 hereof;
 
(4)       to evidence the succession of another corporation to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities;
 
(5)       to grant to or confer upon the Trustee for the benefit of the Holders any additional rights, remedies, powers or authority;
 
(6)       to permit the Trustee to comply with any duties imposed upon it by law;
 
(7)       to specify further the duties and responsibilities of, and to define further the relationships among the Trustee, any Authenticating Agent and any paying agent;
 
(8)       to add to the covenants of the Company for the benefit of the Holders of one or more series of Securities, to add security for the Securities, to surrender a right or power conferred on the Company herein or to add any Event of Default with respect to one or more series of Securities;
 
(9)       to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate a satisfaction and discharge pursuant to Article IV, provided that any such action shall not adversely affect the interests of any holder of a Security of such series or any other Security or coupon; and
 
(10)     to make any other change that is not prejudicial to the Trustee or the Holders.
 
 
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(b)           The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
 
(c)           Any supplemental indenture authorized by this Section 12.1 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 12.2 hereof.
 
Section 12.2      Supplemental Indentures With Consent Of Securityholders .
 
(a)           With the consent (evidenced as provided in Section 9.1 hereof) of the Holders of a majority in aggregate principal amount of the Securities of all series at the time outstanding, the Company, when authorized by Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders; provided, however, that if there shall be Securities of more than one series outstanding hereunder and if a proposed supplemental indenture shall directly affect the rights of the Holders of Securities of one or more, but less than all, of such series, then the consent of Holders of a majority in aggregate principal amount of the outstanding Securities of all series so directly affected, considered as one class, shall be required; provided, further, that no such supplemental indenture shall:
 
(1)       change the maturity date of any Security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof or any premium thereon, or change the coin or currency in which the principal of any Security or any premium or interest thereon is payable, or change the date on which any Security may be redeemed or repaid at the option of the Holder thereof or adversely affect the rights of the Securityholders to institute suit for the enforcement of any payment of principal of or any premium or interest on any Security, in each case without the consent of the Holder of each Security so affected;
 
(2)       modify this Section 12.2(a) or reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture or to reduce the percentage of Securities, the Holders of which are required to waive Events of Default, in each case, without the consent of the Holders of all of the Securities then outstanding; or
 
(3)       modify the provisions of Article XIV with respect to the subordination of outstanding Securities of any series in a manner adverse to the Holders thereof without the consent of the Holder of each Security so affected.
 
(b)           Upon the request of the Company, accompanied by a copy of the Board Resolution authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
 
 
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(c)           A supplemental indenture which changes, waives or eliminates any covenant or provision of this Indenture (or any supplemental indenture) which has expressly been included solely for the benefit of one or more series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of Holders of Securities of any other series.
 
(d)           It shall not be necessary for the consent of the Holders of Securities under this Section 12.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
 
(e)           Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to this Section 12.2, the Trustee shall give notice in the manner provided in Section 15.10 hereof, setting forth in general terms the substance of such supplemental indenture, to all Securityholders.  Any failure of the Trustee to give such notice or any defect therein shall not, however, in any way impair or affect the validity of any such supplemental indenture.
 
Section 12.3       Compliance With Trust Indenture Act; Effect Of Supplemental Indentures.   Any supplemental indenture executed pursuant to this Article XII shall comply with the TIA.  Upon the execution of any supplemental indenture pursuant to this Article XII, the Indenture shall be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Securityholders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
 
Section 12.4       Notation On Securities.   Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article XII may bear a notation in form satisfactory to the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities so modified as approved by the Board of Directors and in form satisfactory to the Trustee with respect to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities then outstanding.
 
Section 12.5       Evidence Of Compliance Of Supplemental Indenture To Be Furnished Trustee.   The Trustee, subject to Sections 8.1 and 8.2 hereof, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article XII.
 
 
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ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
 
Section 13.1       Indenture And Securities Solely Corporate Obligations.   No recourse for the payment of the principal of or any premium or interest on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company, contained in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
 
ARTICLE XIV
SUBORDINATION OF SECURITIES
 
Section 14.1       Agreement To Subordinate .  The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of a Security of any series likewise covenants and agrees by its acceptance thereof, that the obligation of the Company to make any payment on account of the principal of and interest on each and all of the Securities of any series shall be subordinate and junior in right of payment to the Company’s obligations to the holders of Senior Indebtedness of the Company.
 
In the case of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Company as a whole, whether voluntary or involuntary, all obligations of the Company to holders of Senior Indebtedness of the Company shall be entitled to be paid in full before any payment shall be made on account of the principal of or interest on any of the Securities.  In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness of the Company, the Holders of the Securities of each series, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of and interest on the Securities of any series before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities.  In addition, in the event of any such proceeding, if any payment or distribution of assets of the Company of any kind or character whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities of any series shall be received by the Trustee or the Holders of the Securities of any series before all Senior Indebtedness of the Company is paid in full, such payment or distribution shall be held in trust for the benefit of and shall be paid over to the holders of such Senior Indebtedness of the Company or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness of the Company may have been issued, ratably, for application to the payment of all Senior Indebtedness of the Company remaining unpaid until all such Senior Indebtedness of the Company shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness of the Company.  The obligations of the Company in respect of the Securities of all series shall rank on a parity with any obligations of the Company ranking on a parity with the Securities.  Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.6.
 
 
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The subordination provisions of the foregoing paragraph and Section 14.9 shall not be applicable to amounts at the time due and owing on the Securities of any series on account of the unpaid principal of or interest on the Securities of such series for the payment of which funds have been deposited in trust with the Trustee or any paying agent or have been set aside by the Company in trust in accordance with the provisions of this Indenture; nor shall such provisions impair any rights, interests, or powers of any secured creditor of the Company in respect of any security the creation of which is not prohibited by the provisions of this Indenture.
 
The Company shall give written notice to the Trustee within 10 Business Days after the occurrence of (i) any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding-up of or relating to the Company as a whole, whether voluntary or involuntary, (ii) any Event of Default described in Section 7.1(a)(4) or 7.1(a)(5), or (iii) any event specified in Section 14.9.  The Trustee, subject to the provisions of Section 8.1, shall be entitled to assume that, and may act as if, no such event referred to in the preceding sentence has occurred unless a Responsible Officer of the Trustee assigned to the Trustee’s corporate trust department has received at the principal office of the Trustee from the Company or any one or more holders of Senior Indebtedness of the Company or any trustee or representative therefor (who shall have been certified or otherwise established to the satisfaction of the Trustee to be such a holder or trustee or representative) written notice thereof.  Upon any distribution of assets of the Company referred to in this Article, the Trustee and Holders of the Securities of each series shall be entitled to rely upon any order or decree of a court of competent jurisdiction in which proceedings relating to any event specified in the first sentence of this paragraph are pending for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon, and all other facts pertinent thereto or to this Article, and the Trustee, subject to the provisions of Article VIII, and the Holders of the Securities of each series shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders of the Securities of each series for the purpose of ascertaining the Persons entitled to participate in such distribution, the Holders of the Senior Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.  In the absence of any such liquidating trustee, agent or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing himself to be a Holder of Senior Indebtedness of the Company (or a trustee or representative on behalf of such holder) as evidence that such Person is a holder of such Senior Indebtedness (or is such a trustee or representative).  In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any Person, as a Holder of Senior Indebtedness of the Company, to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, as to the extent to which such Person is entitled to participation in such payment or distribution, and as to other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
 
 
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Section 14.2       Obligation Of The Company Unconditional .  Nothing contained in this Article or elsewhere in this Indenture is intended to or shall impair, as between the Company and the Holders of the Securities of each series, the obligation of the Company, which is absolute and unconditional, to pay to such Holders the principal of and interest on such Securities of each series when, where and as the same shall become due and payable, all in accordance with the terms of such Securities, or is intended to or shall affect the relative rights of such Holders and creditors of the Company other than the Holders of the Senior Indebtedness of the Company, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness of the Company in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
 
Section 14.3      Limitations On Duties To Holders Of Senior Indebtedness Of The Company .  With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior Indebtedness of the Company shall be read into this Indenture against the Trustee.  The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Company, except with respect to moneys held in trust pursuant to the first paragraph of Section 14.1.
 
Section 14.4       Notice To Trustee Of Facts Prohibiting Payment .  Notwithstanding any of the provisions of this Article or any other provisions of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to or by the Trustee unless and until a Responsible Officer of the Trustee assigned to its corporate trust department shall have received at the principal office of the Trustee written notice thereof from the Company or from one or more holders of Senior Indebtedness of the Company or from any trustee therefor or representative thereof who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee to be such a holder or trustee or representative; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 8.1, shall be entitled in all respects to assume that no such facts exist; provided, however, that, if prior to the fifth Business Day preceding the date upon which by the terms hereof any such moneys may become payable for any purpose, or in the event of the execution of an instrument pursuant to Section 4.1 or 4.5 acknowledging satisfaction and discharge of this Indenture or acknowledging a defeasance or in the event of a deposit under Section 4.5(d)(1) with respect to a covenant defeasance, then, if prior to the second Business Day preceding the date of such execution or deposit, as the case may be, the Trustee shall not have received with respect to such moneys or the moneys and/or Governmental Obligations deposited pursuant to Section 4.5 the notice provided for in this Section 14.4, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and/or Governmental Obligations and/or apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such date; provided, however, no such application shall affect the obligations under this Article of the Persons receiving such moneys from the Trustee.
 
 
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Section 14.5       Application By Trustee Of Moneys Deposited With It .  Anything in this Indenture to the contrary notwithstanding, any deposit of moneys by the Company with the Trustee or any agent (whether or not in trust) for any payment of the principal of or interest on any Securities shall, except as provided in Section 14.4, be subject to the provisions of Section 14.1.
 
Section 14.6      Subrogation .  Subject to the payment in full of all Senior Indebtedness of the Company, the Holders of the Securities of each series shall be subrogated to the rights of the Holders of such Senior Indebtedness to receive payments or distributions of assets of the Company applicable to such Senior Indebtedness until the Securities shall be paid in full, and none of the payments or distributions to the Holders of such Senior Indebtedness to which the Holders of the Securities of any series or the Trustee would be entitled except for the provisions of this Article or of payments over pursuant to the provisions of this Article to the Holders of such Senior Indebtedness by the Holders of such Securities or the Trustee shall, as among the Company, its creditors other than the Holders of such Senior Indebtedness, and the Holders of such Securities, be deemed to be a payment by the Company to or on account of such Senior Indebtedness; it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of such Securities, on the one hand, and the Holders of the Senior Indebtedness of the Company, on the other hand.
 
Section 14.7       Subordination Rights Not Impaired By Acts Or Omissions Of Company Or Holders Of Senior Indebtedness Of The Company .  No right of any present or future Holders of any Senior Indebtedness of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such Holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof with which any such Holder may have or be otherwise charged.  The Holders of Senior Indebtedness of the Company may, at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Senior Indebtedness of the Company, or amend or supplement any instrument pursuant to which any such Senior Indebtedness of the Company is issued or by which it may be secured, or release any security therefor, or exercise or refrain from exercising any other of their rights under the Senior Indebtedness of the Company including, without limitation, the waiver of default thereunder, all without notice to or assent from the Holders of the Securities of each series or the Trustee and without affecting the obligations of the Company, the Trustee or the Holders of such Securities under this Article.
 
 
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Section 14.8       Authorization Of Trustee To Effectuate Subordination Of Securities .  Each Holder of a Security of any series, by its acceptance thereof, authorizes and expressly directs the Trustee on its behalf to take such action as may be necessary or appropriate to effectuate, as between the Holders of such Securities and the holders of Senior Indebtedness of the Company, the subordination provided in this Article and appoints the Trustee as attorney-in-fact for any and all such purposes.  If, in the event of any proceeding or other action relating to the Company referred to in the first sentence of the second paragraph of Section 14.1, the Trustee does not file a claim or proof of debt in the form required in such proceeding or action is not filed by or on behalf of the Holders of the Securities of any series prior to fifteen days before the expiration of the time to file such claim or claims, then the holder or holders of Senior Indebtedness of the Company shall have the right to file and are hereby authorized to have the right to and are (or is) authorized to file in the name of the Trustee, a claim or proof of debt for and on behalf of the Holders of such Securities; provided that (a) if the holder or holders of the Senior Indebtedness of the Company file any claim or proof of debt as contemplated above and the Trustee shall subsequently file a claim or proof of debt in such proceeding before the expiration of the time to file a claim or proof of debt in such proceeding, such subsequent claim or proof of debt filed by the Trustee shall supersede any such claim or proof of debt previously filed by the holder or  holders of the Senior Indebtedness of the Company, and such claim or proof of debt previously filed by the holder or holders of the Senior Indebtedness of the Company shall withdraw such claim or proof of debt, and in any event, such claim or proof of debt shall be deemed to be withdrawn, and (b) the foregoing provisions of this paragraph shall not be construed to authorize the holder or holders of the Senior Indebtedness of the Company to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, liquidation, arrangement, adjustment or composition affecting the Securities, or to authorize the holder or holders of the Senior Indebtedness of the Company to vote in respect of the claim of any Holder in any such proceeding. This paragraph is intended solely to permit the holder or holders of Senior Indebtedness of the Company to preserve their “turnover right” pursuant to the applicable subordination provisions in this Article XIV in circumstances where a claim or proof of debt has not been filed by the Trustee before the expiration of the time to file a claim or proof of debt in a bankruptcy proceeding, and nothing herein is intended to impair the rights of the Trustee under Section 7.3 and Section 8.6 of this Indenture.
 
The Trustee shall not be deemed to owe any fiduciary duty, or any other duty, to the holder or holders of Senior Indebtedness of the Company and shall not be liable to any such holder or holders for any action it takes or omits to take within the rights or powers conferred upon it by this Indenture.
 
The Trustee shall not be responsible for any costs, expenses, damages or other liabilities arising (directly or indirectly) as a result of (i) any filing of a claim or proof of debt by a holder or holders of Senior Indebtedness of the Company or (ii) any right of the holder or holders of Senior Indebtedness of the Company to file any such claim or proof of debt, in any such case in accordance with the first paragraph of this Section 14.8.
 
Section 14.9       No Payment When Senior Indebtedness In Default.   In the event and during the continuation of any default in the payment of principal of or interest on any Senior Indebtedness, or in the event that any event of default with respect to any Senior Indebtedness shall have occurred and be continuing and shall have resulted in such Senior Indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured, waived or remedied or shall have ceased to exist and such acceleration shall have been rescinded or annulled or all amounts due on such Senior Indebtedness are paid in full in cash or other permitted consideration, or in the event any judicial proceeding shall be pending with respect to any such default in payment or such event or default (unless and until all amounts due on such Senior Indebtedness are paid in full in cash or other permitted consideration), then no payment or distribution of any kind or character, whether in cash, properties or securities shall be made by the Company on account of principal of (or premium, if any) or interest (including any Additional Interest) if any, on the Securities or on account of the purchase or other acquisition of Securities by the Company or any subsidiary.
 
 
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In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the holder of any Security prohibited by the foregoing provisions of this Section 14.9, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event payment shall be paid over and delivered forthwith to the Company.
 
Section 14.10    Right Of Trustee To Hold Senior Indebtedness Of The Company.   The Trustee shall be entitled to all of the rights set forth in this Article in respect of any Senior Indebtedness of the Company at any time held by it in its individual capacity to the same extent as any other Holder of such Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such Holder.
 
Section 14.11     Article XIV Not To Prevent Defaults.   The failure of the Company to make a payment pursuant to the terms of Securities of any series by reason of any provision in this Article shall not be construed as preventing the occurrence of an Event of Default under this Indenture.
 
ARTICLE XV
MISCELLANEOUS PROVISIONS
 
Section 15.1       Provisions Binding On Company’s Successors.   All the covenants, stipulations, promises and agreements made by the Company in this Indenture shall bind its successors and assigns whether so expressed or not.
 
Section 15.2       Official Acts By Successor Corporation.   Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful successor of the Company.
 
Section 15.3       Notices .
 
(a)           Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Securityholders on the Company may be given or served by being deposited postage prepaid in a post office letter box addressed (until another address is filed by the Company with the Trustee) at the principal executive offices of the Company, to the attention of the Secretary.  Any notice, direction, request or demand by any Securityholder or the Company to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the corporate trust office of the Trustee, Attention: Xcel Energy Administrator, Corporate Trust Department.
 
 
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(b)           The Company shall provide any notices required under this Indenture by publication, but only to the extent that such publication is required by the TIA, the rules and regulations of the Commission or any securities exchange upon which any series of Securities is listed.
 
Section 15.4       Governing Law.   This Indenture and each Security shall be deemed to be a contract made under the laws of the State of Minnesota, and for all purposes shall be construed in accordance with the laws of said State.
 
Section 15.5       Evidence Of Compliance With Conditions Precedent .
 
(a)           Upon any application or demand by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenants compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
 
(b)           Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture (other than the certificates delivered pursuant to Section 5.5 hereof) shall include (1) a statement that each Person making such certificate or opinion has read such covenant or condition and the definitions relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with.
 
(c)           In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
 
(d)           Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such certificate or opinion is based are erroneous.  Any such certificate or opinion of counsel delivered under the Indenture may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such Person knows, or in the exercise of reasonable care should know, that the certificate or opinion of representations with respect to such matters are erroneous.  Any opinion of counsel delivered hereunder may contain standard exceptions and qualifications satisfactory to the Trustee.
 
 
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(e)           Any certificate, statement or opinion of any officer of the Company, or of counsel, may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an independent public accountant or firm of accountants, unless such officer or counsel, as the case may be, knows that the certificate or opinions or representations with respect to the accounting matters upon which the certificate, statement or opinion of such officer or counsel may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.  Any certificate or opinion of any firm of independent public accountants filed with the Trustee shall contain a statement that such firm is independent.
 
(f)           Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
 
Section 15.6      Business Days.   Unless otherwise provided pursuant to Section 2.5(c) hereof, in any case where the date of maturity of the principal of or any premium or interest on any Security or the date fixed for redemption of any Security is not a Business Day, then payment of such principal or any premium or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and affect as if made on the date of maturity or the date fixed for redemption, and, in the case of timely payment thereof, no interest shall accrue for the period from and after such Interest Payment Date or the date on which the principal of the Security is required to be paid.
 
Section 15.7       Trust Indenture Act To Control.   If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the TIA, such required provision of the TIA shall govern.
 
Section 15.8       Table Of Contents, Headings, Etc.   The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
 
Section 15.9       Execution In Counterparts.   This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
 
Section 15.10    Manner Of Mailing Notice To Securityholders.   Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or the Company to or on the Holders of Securities, as the case may be, shall be given or served by first-class mail, postage prepaid, addressed to the Holders of such Securities at their last addresses as the same appear on the register for the Securities referred to in Section 2.6, and any such notice shall be deemed to be given or served by being deposited in a post office letter box in the form and manner provided in this Section 15.10.  In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice to any Holder by mail, then such notification to such Holder as shall be made by such reasonable alternate method of delivery, with notice of such to be provided to the Trustee, shall constitute a sufficient notification for every purpose hereunder.
 
 
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Section 15.11     Approval By Trustee Of Expert Or Counsel.   Wherever the Trustee is required to approve an Expert or counsel who is to furnish evidence of compliance with conditions precedent in this Indenture, such approval by the Trustee shall be deemed to have been given upon the taking of any action by the Trustee pursuant to and in accordance with the certificate or opinion so furnished by such Expert or counsel.
 
IN WITNESS WHEREOF, XCEL ENERGY INC. has caused this Indenture to be signed and acknowledged by one of its Vice Presidents, and attested by its Secretary or Assistant Secretary, and [____________________________] has caused this Indenture to be signed and acknowledged by one of its Vice Presidents or authorized Corporate Trust Officers, this          day of                   ,          .
 
 
XCEL ENERGY INC.
   
   
 
By:
 
 
 
ATTEST:
 
   
 
   
 
   
 
[______________________________________ ], as Trustee
   
   
 
By:
 

 
- 56 -
 
 
EXHIBIT A
 
FORM OF GLOBAL SECURITY
 
REGISTERED
 
REGISTERED

THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.  UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.  OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
XCEL ENERGY INC.
(Incorporated under the laws of the State of Minnesota)
 
[        ]  % SUBORDINATED NOTES, SERIES DUE [        ]
 
CUSIP:
 
NUMBER:
     
ORIGINAL ISSUE DATE(S):
 
PRINCIPAL AMOUNT(S):
     
INTEREST RATE:
 
MATURITY DATE:

 
A-1
 
 
XCEL ENERGY INC., a corporation of the State of Minnesota (the “Company”), for value received hereby promises to pay to Cede & Co.  or registered assigns, the principal sum of [               ] DOLLARS on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date (or if this Global Security has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal amount to which that Original Issue Date is applicable) set forth above or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually in arrears on the [                  ] and [             ] in each year, commencing on the first such Interest Payment Date succeeding the applicable Original Issue Date set forth above, at the per annum Interest Rate set forth above, until the principal hereof is paid or made available for payment.  No interest shall accrue on the Maturity Date, so long as the principal amount of this Global Security is paid on the Maturity Date.  The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the [                          ] or [                          ], as the case may be, next preceding such Interest Payment Date; provided, that the first Interest Payment Date for any part of this Security, the Original Issue Date of which is after a Regular Record Date but prior to the applicable Interest Payment Date, shall be the Interest Payment Date following the next succeeding Regular Record Date; and provided, that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable.  Except as otherwise provided in the Indenture (as defined below), any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Securityholders not more than fifteen days or fewer than ten days prior to such Special Record Date.  On or before Noon, New York City time, or such other time as shall be agreed upon between the Trustee and the Depository, of the day on which such payment of interest is due on this Global Security (other than maturity), the Trustee shall pay to the Depository such interest in same day funds.  On or before Noon, New York City time, or such other time as shall be agreed upon between the Trustee and the Depository, of the day on which principal, interest payable at maturity and premium, if any, is due on this Global Security and following receipt of the necessary funds from the Company, the Trustee shall deposit with the Depository the amount equal to the principal, interest payable at maturity and premium, if any, by wire transfer into the account specified by the Depository.  As a condition to the payment, on the Maturity Date or upon redemption or acceleration, of any part of the principal and applicable premium of this Global Security, the Depository shall surrender, or cause to be surrendered, this Global Security to the Trustee, whereupon a new Global Security shall be issued to the Depository.
 
This Global Security is a global security in respect of a duly authorized issue of Subordinated Notes, Series due [                          ] (the “Securities of this Series,” which term includes any Global Securities representing such Securities) of the Company issued and to be issued under a Subordinated Indenture dated as of [                          ] between the Company and [_______________________________], as trustee (herein called the “Trustee,” which term includes any successor Trustee under the Indenture) and indentures supplemental thereto (collectively, the “Indenture”).  Under the Indenture, one or more series of Securities may be issued and, as used herein, the term “Securities” refers to the Securities of this Series and any other outstanding series of Securities.  The indebtedness of the Company evidenced by this Global Security, including the principal hereof and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company’s obligations to holders of Senior Indebtedness of the Company and each Holder of this Global Security, by acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and all other provisions of the Indenture.  Reference is hereby made for a more complete statement of the respective rights, limitations of rights, duties and immunities under the Indenture of the Company, the Trustee and the Securityholders and of the terms upon which the Securities are and are to be authenticated and delivered.  This Global Security has been issued in respect of the series designated on the first page hereof, limited in aggregate principal amount to $[                          ].
 
 
A-2
 
 
Each Security of this Series shall be dated and issued as of the date of its authentication by the Trustee and shall bear an Original Issue Date or Dates.  Each Security or Global Security issued upon transfer, exchange or substitution of such Security or Global Security shall bear the Original Issue Date or Dates of such transferred, exchanged or substituted Security or Global Security, as the case may be.
 
[Insert redemption provisions, if applicable]
 
[Notice of redemption will be given by mail to Holders of Securities of this Series not less than 30 or more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.  In the event of redemption of this Global Security in part only, a new Global Security or Securities of like tenor and series for the unredeemed portion hereof will be issued in the name of the Securityholder hereof upon the surrender hereof.]
 
Interest payments for this Global Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months.  In any case where any Interest Payment Date or date on which the principal of this Global Security is required to be paid is not a Business Day, then payment of principal, premium or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date or date on which the principal of this Global Security is required to be paid and, in the case of timely payment thereof, no interest shall accrue for the period from and after such Interest Payment Date or the date on which the principal of this Global Security is required to be paid.
 
The Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Securities of this Series (except for certain obligations including obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold monies for payment in trust, all as set forth in the Indenture) if the Company deposits with the Trustee money, U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, or a combination of money and U.S. Government Obligations, in any event in an amount sufficient, without reinvestment, to pay all the principal of and any premium and interest on the Securities on the dates such payments are due in accordance with the terms of the Securities of this Series.
 
If an Event of Default shall occur and be continuing, the principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture.
 
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modifications of the rights and obligations of the Company and the rights of the Securityholders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the outstanding Securities.  Any such consent or waiver by the Holder of this Global Security shall be conclusive and binding upon such Holder and upon all future Holders of this Global Security and of any Security issued upon the registration of transfer hereof or in exchange therefor or in lieu thereof whether or not notation of such consent or waiver is made upon the Security.
 
 
A-3
 
 
As set forth in and subject to the provisions of the Indenture, no Holder of any Securities will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to such Securities, the Holders of not less than a majority in principal amount of the outstanding Securities affected by such Event of Default shall have made written request and offered reasonable indemnity to the Trustee to institute such proceeding as Trustee and the Trustee shall have failed to institute such proceeding within 60 days; provided, however , that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of and any premium or interest on this Security on or after the respective due dates expressed here.
 
No reference herein to the Indenture and to provisions of this Global Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Global Security at the times, places and rates and the coin or currency prescribed in the Indenture.
 
As provided in the Indenture and subject to certain limitations therein set forth, this Global Security may be transferred only as permitted by the legend hereto.
 
If at any time the Depository for this Global Security notifies the Company that it is unwilling or unable to continue as Depository for this Global Security or if at any time the Depository for this Global Security shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depository with respect to this Global Security.  If a successor Depository for this Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election to issue this Security in global form shall no longer be effective with respect to this Global Security and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of this Series in exchange for this Global Security, will authenticate and deliver individual Securities of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of this Global Security.
 
The Company may at any time and in its sole discretion determine that all Securities of this Series (but not less than all) issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities.  In such event, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of this Series in exchange for such Global Security, shall authenticate and deliver, individual Securities of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities in exchange for such Global Security or Securities.
 
 
A-4
 
 
Under certain circumstances specified in the Indenture, the Depository may be required to surrender any two or more Global Securities which have identical terms (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depository a Global Security in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Securities surrendered thereto and that shall indicate all Original Issue Dates and the principal amount applicable to each such Original Issue Date.
 
The Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of Minnesota.
 
Unless the certificate of authentication hereon has been executed by the Trustee, directly or through an Authenticating Agent by manual signature of an authorized officer, this Global Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
All terms used in this Global Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture unless otherwise indicated herein.
 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
Dated:
 
XCEL ENERGY INC.
     
   
By:
 
       
   
Title:
 
       
   
Attest:
 
       
   
Title:
 
 
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
 
This Security is one of the Securities of the series herein designated, described or provided for in the within-mentioned Indenture.
 
[_______________________________ ], as Trustee
 
   
By:
   
Authorized Officer
 

 
A-5
 
 
ABBREVIATIONS
 
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
 
TEN COM—as tenants in common
UNIF
     
 
GIFT
     
 
MIN
     
 
ACT —
 
Custodian
 
   
(Cust)
 
(Minor)
         
TEN ENT—as tenants by the entireties
 
Under Uniform Gifts to Minors
     
JT TEN—as joint tenants with right
 
of survivorship and not as tenants in common
State
 
Additional abbreviations may also be used
 
though not in the above list.
 
 
FOR VALUE RECEIVED the undersigned hereby sell(s),
 
assign(s) and transfer(s) unto
 
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
 
 
 
 
 
 

 
A-6
 
 
Please print or typewrite name and address including postal zip code of assignee
 
 
     
the within security and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said security on the books of the Company, with full power of substitution in the premises.
   
     
Dated:
   
     
   
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.

 
A-7
 
 
EXHIBIT B
 
FORM OF SECURITY
 
REGISTERED
 
REGISTERED

XCEL ENERGY INC.
(Incorporated under the laws of the State of Minnesota)
[      ]% SUBORDINATED NOTE, SERIES DUE [          ]
 
CUSIP:
 
NUMBER:
     
ORIGINAL ISSUE DATE(S):
 
PRINCIPAL AMOUNT(S):
     
INTEREST RATE:
 
MATURITY DATE:
 
XCEL ENERGY INC., a corporation of the State of Minnesota (the “Company” ), for value received hereby promises to pay to [                                                                  ] or registered assigns, the principal sum of [                          ] DOLLARS on the Maturity Date set forth above, and to pay interest thereon from the Original Issue Date set forth above or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on [                   ] and [                   ] in each year, commencing on the first such Interest Payment Date succeeding the Original Issue Date set forth above, at the per annum Interest Rate set forth above, until the principal hereof is paid or made available for payment.  No interest shall accrue on the Maturity Date, so long as the principal amount of this Security is paid in full on the Maturity Date.  The interest so payable and punctually paid or duly provided for on any such Interest Payment Date will, as provided in the Indenture (as defined below), be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date for such interest, which shall be the [                    ] or [                          ], as the case may be, next preceding such Interest Payment Date; provided that the first Interest Payment Date for any Security, the Original Issue Date of which is after a Regular Record Date but prior to the applicable Interest Payment Date, shall be the Interest Payment Date following the next succeeding Regular Record Date; and provided, that interest payable on the Maturity Date set forth above or, if applicable, upon redemption or acceleration, shall be payable to the Person to whom principal shall be payable.  Except as otherwise provided in the Indenture (referred to on the reverse hereof), any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and shall be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Securityholders not more than fifteen days nor fewer than ten days prior to such Special Record Date.  Principal, applicable premium and interest due at the maturity of this Security shall be payable in immediately available funds when due upon presentation and surrender of this Security at the corporate trust office of the Trustee or at the authorized office of any paying agent in the Borough of Manhattan, the City and State of New York.  Interest on this Security (other than interest payable at maturity) shall be paid by check in clearinghouse funds to the Holder as its name appears on the register; provided, that if the Trustee receives a written request from any Holder of Securities (as defined below), the aggregate principal amount of all of which having the same Interest Payment Date as this Security equals or exceeds $10,000,000, on or prior to the applicable Regular Record Date, interest on the Security shall be paid by wire transfer of immediately available funds to a bank within the continental United States designated by such Holder in its request or by direct deposit into the account of such Holder designated by such Holder in its request if such account is maintained with the Trustee or any paying agent.
 
 
B-1
 
 
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
 
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent by manual signature of an authorized officer, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
In WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
Dated:
XCEL ENERGY INC.
   
 
By:
 
     
 
Title:
 
     
 
Attest:
 
     
 
Title:
 
 
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
 
This Security is one of the Securities of the series herein designated, described or provided for in the within-mentioned Indenture.
 
[_____________________________________ ], as Trustee
 
   
By:
   
Authorized Officer
 

 
B-2
 
 
[FORM OF REVERSE OF SECURITY]
XCEL ENERGY INC.
[          ]% SUBORDINATED NOTE, SERIES DUE [          ]
 
This Security is one of a duly authorized issue of Subordinated Notes, Series due [                   ] (the “Securities of this Series” ) of the Company issued and to be issued under an Indenture dated as of [                          ], between the Company and [_______________________________], as trustee (herein called the “Trustee,” which term includes any successor Trustee under the Indenture) and indentures supplemental thereto (collectively, the “Indenture” ).  Under the Indenture, one or more series of Securities may be issued and, as used herein, the term “Securities” refers to the Securities of this Series and any other outstanding series of Securities.  The indebtedness of the Company evidenced by this Security, including the principal hereof and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company’s obligations to holders of Senior Indebtedness of the Company and each Holder of this Security, by acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and all other provisions of the Indenture.  Reference is hereby made for a more complete statement of the respective rights, limitations of rights, duties and immunities under the Indenture of the Company, the Trustee and the Securityholders and of the terms upon which the Securities are and are to be authenticated and delivered.  This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $[                          ].
 
[Insert redemption provisions, if applicable]
 
[Notice of redemption will be given by mail to Holders of Securities of this Series not less than 30 or more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.  In the event of redemption of this Security in part only, a new Security or Securities of this Series of like tenor for the unredeemed portion hereof will be issued in the name of the Securityholder hereof upon the surrender hereof.]
 
Interest payments for this Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months.  In any case where any Interest Payment Date or the date on which the principal of this Security is required to be paid is not a Business Day, then payment of principal, premium or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date or the date on which the principal of this Security is required to be paid, and, in the case of timely payment thereof, no interest shall accrue for the period from and after such Interest Payment Date or the date on which the principal of this Security is required to be paid.
 
The Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Securities (except for certain obligations including obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold monies for payment in trust, all as set forth in the Indenture) if the Company deposits with the Trustee money, U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, or a combination of money and U.S. Government Obligations, in any event in an amount sufficient, without reinvestment, to pay all the principal of and any premium and interest on the Securities on the dates such payments are due in accordance with the terms of the Securities.
 
 
B-3
 
 
If an Event of Default shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
 
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modifications of the rights and obligations of the Company and the rights of the Securityholders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the outstanding Securities.  Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange therefor in lieu thereof whether or not notation of such consent or waiver is made upon the Security.
 
As set forth in and subject to the provisions of the Indenture, no Holder of any Securities will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to such Securities, the Holders of not less than a majority in principal amount of the outstanding Securities affected by such Event of Default shall have made written request and offered reasonable indemnity to the Trustee to institute such proceeding as Trustee and the Trustee shall have failed to institute such proceeding within 60 days; provided , however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of and any premium or interest on this Security on or after the respective due dates expressed here.
 
No reference herein to the Indenture and to provisions of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, places and rates and the coin or currency prescribed in the Indenture.
 
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security register.  Upon surrender of this Security for registration or transfer at the corporate trust office of the Trustee or such other office or agency as may be designated by the Company in the Borough of Manhattan, the City and State of New York, endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security registrar, duly executed by the Holder hereof or the attorney in fact of such Holder duly authorized in writing, one or more new Securities of this Series of like tenor and of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.
 
The Securities of this Series are issuable only in registered form, without coupons, in denominations of $1,000 and any integral multiple thereof.  As provided in the Indenture and subject to certain limitations therein set forth, Securities of this Series are exchangeable for a like aggregate principal amount of Securities of this Series of like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.
 
 
B-4
 
 
No service charge shall be made for any such registration of transfer or exchange but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
 
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner thereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
 
The Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of Minnesota.
 
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
 
 
B-5
 
 
ABBREVIATIONS
 
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
 
TEN COM—as tenants in common
UNIF
     
 
GIFT
     
 
MIN
     
 
ACT —
 
Custodian
 
   
(Cust)
 
(Minor)
         
TEN ENT—as tenants by the entireties
 
Under Uniform Gifts to Minors
     
JT TEN—as joint tenants with right
 
of survivorship and not as tenants in common
State
 
Additional abbreviations may also be used
 
though not in the above list.
 
 
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
 
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
 
 
 
 
 
 

 
B-6
 
 
Please print or typewrite name and address including postal zip code of assignee
 
 
     
the within security and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said security on the books of the Company, with full power of substitution in the premises.
   
     
Dated:
   
     
   
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.
 
 
B-7
Exhibit 4.14
 
FORM OF
SUPPLEMENTAL INDENTURE NO. 

FROM

XCEL ENERGY INC.
(a Minnesota corporation)

TO

[        ]
Trustee

[            ] SUBORDINATED NOTES, SERIES DUE [        ]

DATED AS OF
[                  ]

SUPPLEMENTAL TO SUBORDINATED INDENTURE
DATED AS OF [                  ]

 
 
 
 
TABLE OF CONTENTS
 
       
Page
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
 
SECTION 1.01
 
INTEGRAL PART OF INDENTURE
 
1
SECTION 1.02
     
1
 
(a)
 
Definitions
 
1
 
(b)
 
References to Articles and Sections
 
2
 
(c)
 
Terms Relating to this Supplemental Indenture
 
2
           
ARTICLE TWO
[                        ]% SUBORDINATED NOTES, SERIES DUE [        ]
 
SECTION 2.01
 
DESIGNATION AND PRINCIPAL AMOUNT
 
2
SECTION 2.02
 
STATED MATURITY DATE
 
2
SECTION 2.03
 
INTEREST PAYMENTS
 
2
SECTION 2.04
 
OFFICE FOR PAYMENT
 
2
SECTION 2.05
 
REDEMPTION
 
2
SECTION 2.06
 
AUTHORIZED DENOMINATIONS
 
3
SECTION 2.07
 
FORM OF NOTES
 
3
SECTION 2.08
 
REOPENING OF NOTES
 
3
SECTION 2.09
 
[ADDITIONAL COVENANTS]
 
3
SECTION 2.10
 
[EVENTS OF DEFAULT]
 
3
         
ARTICLE THREE
MISCELLANEOUS
 
SECTION 3.01
 
RECITALS OF FACT, EXCEPT AS STATED, ARE STATEMENTS OF THE COMPANY
 
3
SECTION 3.02
 
SUPPLEMENTAL INDENTURE TO BE CONSTRUED AS A PART OF THE INDENTURE
 
3
SECTION 3.03
     
3
 
(a)
 
Trust Indenture Act to Control
 
3
 
(b)
 
Severability of Provisions Contained in Supplemental Indenture and Notes
 
3
SECTION 3.04
 
REFERENCE TO EITHER PARTY IN SUPPLEMENTAL INDENTURE INCLUDED SUCCESSORS OR ASSIGNS
 
3
SECTION 3.05
     
4
 
(a)
 
Provision for Execution in Counterparts
 
4
 
(b)
 
Table of Contents and Description Headings of Articles Not to Affect Meaning
 
4

 
 
 
 
THIS SUPPLEMENTAL INDENTURE NO. [    ], made as of the [                        ] day of [                       ], by and between XCEL ENERGY INC., a corporation duly organized and existing under the laws of the State of Minnesota (the ”Company”), and [                                                ], a [                                            ] organized and existing under the laws of the United States, as trustee (the ”Trustee”):
 
WITNESSETH:
 
WHEREAS, the Company has heretofore executed and delivered its Subordinated Indenture (hereinafter referred to as the “Indenture”), made as of [                        ]; and
 
WHEREAS, Section 2.5 of the Indenture provides that Securities shall be issued in series and that a Company Order shall specify the terms of each series; and
 
WHEREAS, the Company has this day delivered a Company Order setting forth the terms of a series of Securities designated “ [                        ]% Subordinated Notes, Series due [        ]” (hereinafter sometimes referred to as the “Notes due [        ]”); and
 
WHEREAS, Section 12.1 of the Indenture provides that the Company and the Trustee may enter into indentures supplemental thereto for the purposes, among others, of establishing the form of Securities or establishing or reflecting any terms of any Security and adding to the covenants of the Company; and
 
WHEREAS, the execution and delivery of this Supplemental Indenture No.  [     ] (herein, this “Supplemental Indenture”) have been duly authorized by a resolution or written consent adopted by the Board of Directors of the Company;
 
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
 
That in order to set forth the terms and conditions upon which the Notes due [        ] are, and are to be, authenticated, issued and delivered, and in consideration of the premises of the purchase and acceptance of the Notes due [        ] by the Holders thereof and the sum of one dollar duly paid to it by the Trustee at the execution of this Supplemental Indenture, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes due [        ], as follows:
 
ARTICLE ONE.
RELATION TO INDENTURE; DEFINITIONS
 
SECTION 1.01.                This Supplemental Indenture constitutes an integral part of the Indenture.
 
SECTION 1.02.                For all purposes of this Supplemental Indenture:
 
(a)           Definitions. Capitalized terms used herein without definition shall have the meanings specified in the Indenture.
 
 
1
 
 
(b)           References to Articles and Sections. All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture.
 
(c)           Terms Relating to this Supplemental Indenture. The terms “hereof,” “herein,” “hereby,” “hereto,” “hereunder” and “herewith” refer to this Supplemental Indenture.
 
ARTICLE TWO.
[                        ]% SUBORDINATED NOTES, SERIES DUE [        ]
 
SECTION 2.01.                There shall be a series of Securities designated the “ [                        ]% Subordinated Notes, Series due [        ]” (the ”Notes due [        ]”). The Notes due [        ] shall be limited to $[                                    ] aggregate principal amount except as provided in Section 2.08 hereof.
 
SECTION 2.02.                Except as otherwise provided in Section 2.05 hereof, the principal amount of the Notes due [        ] shall be payable on the stated maturity date of [                        ] (the ”Stated Maturity”).
 
SECTION 2.03.                The Notes due [        ] shall be dated their date of authentication as provided in the Indenture.
 
The Notes due [        ] shall bear interest at the rate of [________].
 
The term “Interest Period” shall mean each period from, and including, an Interest Payment Date to, but excluding, the next succeeding Interest Payment Date, except that the first Interest Period shall commence on the date of original issuance of the Notes due [        ].
 
The amount of interest payable for any Interest Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full semi-annual period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).  If an Interest Payment Date[or a Redemption Date (as defined below)] falls on a day that is not a Business Day, the payment of interest and principal shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the Interest Payment Date[or Redemption Date, as applicable].
 
Principal and interest shall be payable to the persons and in the manner provided in Sections 2.4 and 2.12 of the Indenture.
 
SECTION 2.04.                The Notes due [        ] shall be payable at the corporate trust office of the Trustee at the offices of such paying agents as the Company may appoint by Company Order in the future.
 
SECTION 2.05.                [Insert redemption provisions, if applicable].
 
The Notes due [        ] shall not be subject to any sinking fund.
 
 
2
 
 
SECTION 2.06.                The Notes due [       ] shall be issued in fully registered form without coupons in denominations of $[        ] and in integral multiples of $[        ] in excess thereof.
 
SECTION 2.07.                The Notes due [        ] shall initially be in the form attached as Exhibit A hereto.
 
SECTION 2.08.                The Notes due [        ] may be reopened and additional notes of the Notes due [       ] may be issued in excess of the limitation set forth in Section 2.01, provided that such additional notes will contain the same terms (including the maturity date and interest payment terms) as the other Notes due [        ].  Any such additional Notes due [        ], together with the other Notes due [        ], shall constitute a single series for purposes of the Indenture.
 
SECTION 2.09.                [Insert restrictions during optional interest deferral period, if applicable.]
 
SECTION 2.10.                [Notwithstanding anything to the contrary in the Indenture, in no event will the occurrence or continuation of an event described in Section 7.1(a)(3) of the Indenture constitute an Event of Default.]
 
ARTICLE THREE.
MISCELLANEOUS
 
SECTION 3.01.                The recitals of fact herein and in the Notes due [        ] (except the Trustee's Certificate) shall be taken as statements of the Company and shall not be construed as made by the Trustee.
 
SECTION 3.02.                This Supplemental Indenture shall be construed in connection with and as a part of the Indenture.
 
SECTION 3.03.
 
(a)           If any provision of this Supplemental Indenture limits, qualifies, or conflicts with another provision of the Indenture required to be included in indentures qualified under the Trust Indenture Act of 1939 (as enacted prior to the date of this Supplemental Indenture) by any of the provisions of Sections 310 to 317, inclusive, of said Act, such required provisions shall control.
 
(b)           In case any one or more of the provisions contained in this Supplemental Indenture or in the Notes due [        ] issued hereunder should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected, impaired, prejudiced or disturbed thereby.
 
SECTION 3.04.                Whenever in this Supplemental Indenture either of the parties hereto is named or referred to, this shall be deemed to include the successors or assigns of such party, and all the covenants and agreements in this Supplemental Indenture contained by or on behalf of the Company or by or on behalf of the Trustee shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not.
 
 
3
 
 
SECTION 3.05.
 
(a)           This Supplemental Indenture may be simultaneously executed in several counterparts, and all said counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
 
(b)           The Table of Contents and the descriptive headings of the several Articles of this Supplemental Indenture were formulated, used and inserted in this Supplemental Indenture for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
 
[Signature Page Follows]
 
 
4
 
 
IN WITNESS WHEREOF, XCEL ENERGY INC. has caused this Supplemental Indenture to be signed by its President or a Vice President, and attested by its Secretary or an Assistant Secretary and [                                                    ], has caused this Supplemental Indenture to be signed by its President, Vice President, Assistant Vice President or authorized Corporate Trust Officer, and attested by an authorized officer, this [                        ] day of [                        ].
 
 
XCEL ENERGY INC.
 
 
By:
 
     
  Name:   
     
  Title:  
     
  ATTEST:  
     
  By:   
     
  Name:   
     
  Title:   
     
  [                                                    ],
  as Trustee
   
  By:   
     
  Name:    
     
  Title:  
 
 
 
 
 
EXHIBIT A
 
FORM OF GLOBAL SECURITY
 
[                        ]% SUBORDINATED NOTES, SERIES DUE [        ]
 
REGISTERED
REGISTERED

THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
XCEL ENERGY INC.
(Incorporated under the laws of the State of Minnesota)
 
[                        ]% SUBORDINATED NOTES, SERIES DUE [        ]
 
CUSIP:
 
NUMBER:
     
ORIGINAL ISSUE DATE(S):
 
PRINCIPAL AMOUNT(S):    $
     
   
MATURITY DATE:
 
XCEL ENERGY INC., a corporation duly organized and existing under the laws of the State of Minnesota (the “Company”), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [                                    ] DOLLARS on the Maturity Date set forth above (the “Stated Maturity”), and to pay interest thereon from the Original Issue Date (or if this Global Security has two or more Original Issue Dates, interest shall, beginning on each such Original Issue Date, begin to accrue for that part of the principal amount to which that Original Issue Date is applicable) set forth above or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as set forth below.  The Securities of this Series (as defined below) shall bear interest at the rate of [            ].
 
 
 
 
 
The term “Interest Period” shall mean each period from, and including, an Interest Payment Date to, but excluding, the next succeeding Interest Payment Date, except that the first Interest Period shall commence on the date of original issuance of the Securities of this Series.
 
[The amount of interest payable for any semi-annual Interest Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months (and for any period shorter than a full semi-annual period, on the basis of the actual number of days elapsed during such period using 30-day calendar months).  If an Interest Payment Date or a Redemption Date (as defined below) falls on a day that is not a Business Day, the payment of interest and principal shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the Interest Payment Date or Redemption Date, as applicable.]
 
[Insert optional interest deferral provisions, if applicable.]
 
Principal and interest shall be payable to the persons and in the manner provided in Sections 2.4 and 2.12 of the Indenture (as defined below).
 
This Global Security is a global security in respect of a duly authorized issue of Subordinated Notes, Series due [                        ] (the “Securities of this Series,” which term includes any Global Securities representing such Securities) of the Company issued and to be issued under a Subordinated Indenture dated as of [                        ] between the Company and [                                                    ], as trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture) and indentures supplemental thereto (collectively, the “Indenture”). Under the Indenture, one or more series of Securities may be issued and, as used herein, the term “Securities” refers to the Securities of this Series and any other outstanding series of Securities. The indebtedness of the Company evidenced by this Global Security, including the principal hereof and interest hereon, is, to the extent and in the manner set forth in the Indenture, subordinate and junior in right of payment to the Company's obligations to holders of Senior Indebtedness of the Company and each Holder of this Global Security, by acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and all other provisions of the Indenture. Reference is hereby made to the Indenture for a more complete statement of the respective rights, limitations of rights, duties and immunities under the Indenture of the Company, the Trustee and the Securityholders and of the terms upon which the Securities of this Series are and are to be authenticated and delivered. This Global Security has been issued in respect of the series designated on the first page hereof.
 
Each Security of this Series shall be dated and issued as of the date of its authentication by the Trustee and shall bear an Original Issue Date or Dates. Each Security or Global Security issued upon transfer, exchange or substitution of such Security or Global Security shall bear the Original Issue Date or Dates of such transferred, exchanged or substituted Security or Global Security, as the case may be.
 
[Insert redemption provisions, if applicable.]
 
 
 
 
 
[Notice of redemption will be given by mail to Holders of Securities of this Series not less than 30 or more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. In the event of redemption of this Global Security in part only, a new Global Security or Securities of like tenor and series for the unredeemed portion hereof will be issued in the name of the Securityholder hereof upon the surrender hereof.]
 
[Insert restrictions during optional interest deferral period, if applicable.]
 
The Company, at its option, and subject to the terms and conditions provided in the Indenture, will be discharged from any and all obligations in respect of the Securities of this Series (except for certain obligations including obligations to register the transfer or exchange of Securities, replace stolen, lost or mutilated Securities, maintain paying agencies and hold monies for payment in trust, all as set forth in the Indenture) if the Company deposits with the Trustee money, U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money, or a combination of money and U.S. Government Obligations, in any event in an amount sufficient, without reinvestment, to pay all the principal of and any premium and interest on the Securities on the dates such payments are due in accordance with the terms of the Securities of this Series.
 
If an Event of Default with respect to the Securities of this Series shall occur and be continuing, the principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, that notwithstanding anything to the contrary in the Indenture, in no event will the occurrence or continuation of an event described in 7.1(a)(3) of the Indenture constitute an Event of Default with respect to the Securities of this Series.
 
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modifications of the rights and obligations of the Company and the rights of the Securityholders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the outstanding Securities. Any such consent or waiver by the Holder of this Global Security shall be conclusive and binding upon such Holder and upon all future Holders of this Global Security and of any Security issued upon the registration of transfer hereof or in exchange therefor or in lieu thereof whether or not notation of such consent or waiver is made upon the Security.
 
No reference herein to the Indenture and to provisions of this Global Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Global Security at the times, places and rates and the coin or currency prescribed in the Indenture.
 
As provided in the Indenture and subject to certain limitations therein set forth, this Global Security may be transferred only as permitted by the legend hereto.
 
 
 
 
 
If at any time the Depository for this Global Security notifies the Company that it is unwilling or unable to continue as Depository for this Global Security or if at any time the Depository for this Global Security shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depository with respect to this Global Security. If a successor Depository for this Global Security is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election to issue this Security in global form shall no longer be effective with respect to this Global Security and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of this Series in exchange for this Global Security, will authenticate and deliver individual Securities of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of this Global Security.
 
The Company may at any time and in its sole discretion determine that all Securities of this Series (but not less than all) issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of this Series in exchange for such Global Security, shall authenticate and deliver, individual Securities of this Series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities in exchange for such Global Security or Securities.
 
Under certain circumstances specified in the Indenture, the Depository may be required to surrender any two or more Global Securities which have identical terms (but which may have differing Original Issue Dates) to the Trustee, and the Company shall execute and the Trustee shall authenticate and deliver to, or at the direction of, the Depository a Global Security in principal amount equal to the aggregate principal amount of, and with all terms identical to, the Global Securities surrendered thereto and that shall indicate all Original Issue Dates and the principal amount applicable to each such Original Issue Date.
 
The Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of Minnesota.
 
Unless the certificate of authentication hereon has been executed by the Trustee, directly or through an Authenticating Agent by manual signature of an authorized officer, this Global Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
 
All terms used in this Global Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture unless otherwise indicated herein.
 
 
 
 
 
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
 
 
XCEL ENERGY INC.
     
 
By:
 
     
  Title:  
     
  Attest:   
     
  Title:  
 
 
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
 
This Security is one of the Securities of the series herein designated, described or provided for in the within-mentioned Indenture.
 
[                                                    ], as Trustee
 
 
By:      
  Authorized Officer  
 
 
 
 

ABBREVIATIONS
 
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
 
TEN COM—as tenants in common
 
UNIF
         
 
    GIFT            
    MIN            
    ACT—       Custodian    
                 
       
(Cust)
     
(Minor)
                 
TEN ENT—as tenants by the entireties
 
Under Uniform Gifts to Minors
     
JT TEN—as joint tenants with right of
   
survivorship and not as tenants in common   State
 
Additional abbreviations may also be used
 
though not in the above list.
 
______________
 
FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
 
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
 

 

 
 
 
 
 
 
Please print or typewrite name and address including postal zip code of assignee
 
 
the within security and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said security on the books of the Company, with full power of substitution in the premises.
 
 
Dated:
 
 
 
   
 
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.
 
 
Exhibit 5.01
 
   
  Scott Wilensky
  Senior Vice President and General Counsel
 
  414 Nicollet Mall, 5 th Floor
  Minneapolis, Minnesota  55401
  Phone :   612.330.5942 
  Fax:  612.215.4504
 
August 24, 2012
 
Xcel Energy Inc.
414 Nicollet Mall
Minneapolis, Minnesota 55401

Ladies and Gentlemen:

I am Senior Vice President and General Counsel of Xcel Energy Inc., a Minnesota corporation (the “Company”), and, as such, I and the attorneys that I supervise have acted as counsel for the Company in the preparation of the Registration Statement on Form S-3 (as the same may be amended from time to time, the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration and the possible issuance and sale from time to time, on a delayed basis, by the Company of an unspecified amount of:  (i) Senior Debt Securities of the Company (the “Senior Debt Securities”), in one or more series; (ii) Subordinated Debt Securities of the Company (the “Subordinated Debt Securities”), in one or more series; (iii) Junior Subordinated Debt Securities of the Company (the “Junior Subordinated Debt Securities” and, together with the Senior Debt Securities and the Subordinated Debt Securities, the “Debt Securities”), in one or more series;  (iv) shares of common stock, par value $2.50 per share, of the Company (the “Common Stock”); (v) shares of preferred stock, par value $100.00 per share, of the Company (the “Preferred Stock”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock; (vi) depositary shares representing fractional interests in Preferred Stock (the “Depositary Shares”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock; (vii) warrants to purchase Debt Securities, Common Stock, Preferred Stock, Depositary Shares or any combination thereof (the “Warrants”); (viii) purchase contracts for the purchase or sale of Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants or other property at a future date or dates (the “Purchase Contracts”), which may be issued separately or as part of units consisting of a Purchase Contract and other debt securities, preferred securities, warrants or other obligations of third parties securing the holder’s obligations under a Purchase Contract; and (ix) units consisting of one or more of the securities described in clauses (i) through (viii) above and which may include debt obligations of third parties (the “Units”).
 
The Debt Securities, the Common Stock, the Preferred Stock, the Depositary Shares, the Warrants, the Purchase Contracts, and the Units are collectively referred to herein as the “Securities” and each, a “Security.”  The Securities are to be issued from time to time pursuant to Rule 415 under the Securities Act.  The Senior Debt Securities are to be issued under the Indenture, dated as of December 1, 2000 (as supplemented from time to time, the “Senior Debt Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee  (the “Senior Debt Trustee”). The Subordinated Debt Securities are to be issued under one or more indentures a form of which has been filed as an exhibit to the Registration Statement (as supplemented from time to time, the “Subordinated Debt Indenture”), to be entered into between the Company and a trustee to be named therein, as trustee  (the “Subordinated Debt Trustee”). The Junior Subordinated Debt Securities are to be issued under the Indenture, dated as of January 1, 2008 (as supplemented from time to time, the “Junior Subordinated Debt Indenture” and together with the Senior Debt Indenture and the Subordinated Debt Indenture, the “Indentures”), by and between the Company and Wells Fargo Bank, National Association, as trustee  (the “Junior Subordinated Debt Trustee” and, together with the Senior Debt Trustee and the Subordinated Debt Trustee, the “Trustee”).

 
 
 
 
As part of the corporate action taken and to be taken in connection with the issuance of the Securities (the “Corporate Proceedings”), certain terms of the Securities to be issued by the Company from time to time will be approved by the Board of Directors of the Company or an authorized committee thereof or certain authorized officers of the Company.

I , or attorneys that I supervise, have examined or are otherwise familiar with the Amended and Restated Articles of Incorporation of the Company, the Restated By-Laws of the Company, the Registration Statement, such Corporate Proceedings as have occurred as of the date hereof and such other documents, records and instruments as necessary or appropriate for the purposes of this opinion letter.

Based upon the foregoing and assumptions that follow, I am of the opinion that:

 
1.
When and if (a) a supplemental indenture relating to the Senior Debt Securities is duly authorized, executed and delivered, (b) all required Corporate Proceedings with respect to the issuance and the sale of such Senior Debt Securities have been completed and (c) the Senior Debt Securities are duly authorized, executed, authenticated and delivered, and the consideration for the Senior Debt Securities has been received by the Company, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the Senior Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms.
 
 
2.
When and if (a) the Subordinated Debt Indenture and any supplemental indenture relating to the Subordinated Debt Securities is duly authorized, executed and delivered, (b) all required Corporate Proceedings with respect to the issuance and the sale of such Subordinated Debt Securities have been completed and (c) the Subordinated Debt Securities are duly authorized, executed, authenticated and delivered, and the consideration for the Subordinated Debt Securities has been received by the Company, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the Subordinated Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms.
 
 
 
 
 
 
3.
When and if (a) a supplemental indenture relating to the Junior Subordinated Debt Securities is duly authorized, executed and delivered, (b) all required Corporate Proceedings with respect to the issuance and the sale of such Junior Subordinated Debt Securities have been completed and (c) the Junior Subordinated Debt Securities are duly authorized, executed, authenticated and delivered, and the consideration for the Junior Subordinated Debt Securities has been received by the Company, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the Junior Subordinated Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms.
 
 
4.
When and if (a) all required Corporate Proceedings with respect to the issuance and the sale of such Common Stock have been completed and (b) the Company shall have received such lawful consideration therefor having a value not less than the par value thereof as the Company’s Board of Directors (or an authorized committee thereof) may determine, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the shares of Common Stock will be validly issued, fully paid and nonassessable.
 
 
5.
When and if (a) all required Corporate Proceedings (including the filing with the Minnesota Office of the Secretary of State of the appropriate statement, resolutions or form containing the terms of such Preferred Stock) with respect to the issuance and the sale of such Preferred Stock have been completed and (b) the Company shall have received such lawful consideration therefor having a value not less than the par value thereof as the Company’s Board of Directors (or an authorized committee thereof) may determine, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
 
 
6.
When and if (a) all required Corporate Proceedings with respect to the issuance and the sale of such Warrants have been completed and (b) the Company shall have received such lawful consideration therefor as the Company’s Board of Directors (or an authorized committee thereof) may determine, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the Warrants will be validly issued, fully paid and nonassessable.
 
 
7.
When and if (a) all required Corporate Proceedings with respect to the issuance and the sale of such Purchase Contracts have been completed and (b) the Company shall have received such lawful consideration therefor as the Company’s Board of Directors (or an authorized committee thereof) may determine, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the Purchase Contracts will be validly issued, fully paid and nonassessable.
 
 
8.
When and if (a) all required Corporate Proceedings with respect to the issuance and the sale of such Units have been completed and (b) the Company shall have received such lawful consideration therefor as the Company’s Board of Directors (or an authorized committee thereof) may determine, all in the manner contemplated by the applicable prospectus, supplements thereto and the Registration Statement, the shares of Units will be validly issued, fully paid and nonassessable.
 
 
 
 
 
The foregoing opinions assume that (a) with respect to paragraphs 1, 2 and 3, each of the Indentures and any respective supplemental indenture thereto has been duly authorized, executed and delivered by all parties thereto other than the Company; (b) the Registration Statement will have become effective and will remain effective at the time of issuance of any securities thereunder; (c) a prospectus supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant rules and regulations of the Commission, will be timely filed with the Commission; (d) the Company will issue and deliver the Securities in the manner contemplated by the Registration Statement and any Securities issuable upon conversion, exchange or exercise of any other Security, will have been authorized and reserved for issuance, in each case within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities; and (e) at the time of the delivery of the Securities, the Corporate Proceedings related thereto will not have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, execution, delivery, validity or enforceability of such Securities, none of the particular terms of such Securities will violate any applicable law and neither the issuance and sale thereof nor the compliance by the Company with the terms thereof will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction over the Company.

To the extent they relate to enforceability, each of the foregoing opinions is subject to:

 
(i)
the limitation that the provisions of the referenced agreements and instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws of general application affecting the enforcement of creditors’ rights;
 
 
(ii)
general equity principles (regardless of whether enforcement is considered in a proceeding in equity or at law); and
 
 
(iii)
the effect of generally applicable laws that (a) limit the availability of a remedy under certain circumstances where another remedy has been elected, (b) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct or unlawful conduct, or (c) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange.
 
I express no opinion as to the laws of any jurisdiction other than the laws of the State of Minnesota and the federal laws of the United States of America. The opinions herein expressed are limited to the specific issues addressed and to the laws existing on the date hereof. By rendering this opinion letter, I do not undertake to advise you with respect to any other matter or any change in such laws or the interpretation thereof that may occur after the date hereof.
 
 
 
 
 
I hereby consent to the use of my name in the Registration Statement filed by the Company to register the Securities under the Securities Act and to the filing of this opinion letter as Exhibit 5 to the Registration Statement.  In giving such consent, I do not hereby admit that I am included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 
Respectfully submitted,
     
 
By:
/s/ Scott M. Wilensky
  Name:   Scott M. Wilensky
  Title: Senior Vice President and General Counsel

 
Exhibit 12.01
 
XCEL ENERGY INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(Thousands of Dollars, except ratio)
 
   
Six Months
Ended June 30,
    Year Ended Dec. 31  
   
2012
   
2011
   
2010
   
2009
   
2008
   
2007
 
Earnings, as defined:
 
 
   
 
   
 
   
 
   
 
   
 
 
Pretax income from operations
  $ 544,160     $ 1,309,690     $ 1,188,591     $ 1,056,838     $ 984,406     $ 870,383  
Add: Fixed charges
    369,995       725,375       708,529       705,740       654,080       722,561  
Add: Dividends from unconsolidated subsidiaries
    8,028       34,034       32,538       29,059       -       -  
Deduct: Equity earnings of unconsolidated subsidiaries
    14,660       30,527       29,948       24,664       3,571       1,900  
Total earnings, as defined
  $ 907,523     $ 2,038,572     $ 1,899,710     $ 1,766,973     $ 1,634,915     $ 1,591,044  
                                                 
Fixed charges, as defined:
                                               
Interest charges
  $ 303,751     $ 591,098     $ 577,291     $ 561,654     $ 552,919     $ 563,438  
Interest charges on life insurance policy borrowings
    152       332       372       324       248       105,396  
Interest component of leases
    66,092       133,945       130,866       143,762       100,913       53,727  
Total fixed charges, as defined
  $ 369,995     $ 725,375     $ 708,529     $ 705,740     $ 654,080     $ 722,561  
Ratio of earnings to fixed charges
    2.5       2.8       2.7       2.5       2.5       2.2  
 
 
Exhibit 23.01
 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 24, 2012, relating to the consolidated financial statements and financial statement schedules of Xcel Energy Inc. and subsidiaries, and the effectiveness of Xcel Energy Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Xcel Energy Inc. for the year ended December 31, 2011, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

/s/ Deloitte & Touche LLP
 
Minneapolis, Minnesota
August 24, 2012
 
 

Exhibit 24.01
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Benjamin G.S. Fowke III
  Benjamin G.S. Fowke III
  Chairman, President, Chief Executive Officer and Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; (ii) any amendments, supplements or corrections to the Company’s Form 10-K, or other applicable form, for the fiscal year ended December 31, 2011 filed by the Company with the SEC; and (iii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 15 th day of March, 2012.
 
   /s/ Gail Koziara Boudreaux
  Gail Koziara Boudreaux
 
Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Fredric W. Corrigan
  Fredric W. Corrigan
  Director

 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Richard K. Davis
  Richard K. Davis
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Albert F. Moreno
  Albert F. Moreno
  Director

 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; (ii) any amendments, supplements or corrections to the Company’s Form 10-K, or other applicable form, for the fiscal year ended December 31, 2011 filed by the Company with the SEC; and (iii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 20 th day of August, 2012.
 
 
 /s/ Richard T. O’Brien
  Richard T. O’Brien
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Christopher J. Policinski
  Christopher J. Policinski
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ A. Patricia Sampson
  A. Patricia Sampson
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ James J. Sheppard
  James J. Sheppard
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ David A. Westerlund
  David A. Westerlund
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Kim Williams
  Kim Williams
  Director
 
 
 
 
 
POWER OF ATTORNEY

The undersigned director and/or officer of Xcel Energy Inc., a Minnesota corporation (the “Company”), does hereby make, constitute and appoint BENJAMIN G.S. FOWKE III, TERESA S. MADDEN and SCOTT M. WILENSKY , and each or any one of them, the undersigned’s true and lawful attorneys-in-fact and agents, with full power of substitution, for the undersigned and in the undersigned’s name, place and stead and in any and all capacities, to sign and affix the undersigned’s name as such director and/or officer of said Company to (i) a Form 10-K, Annual Report, or other applicable form, pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), including any and all exhibits, schedules, supplements, certifications and supporting documents thereto, including, but not limited to, the Form 11-K Annual Reports of the Company’s three 401(k) Plans and similar plans pursuant to the 1934 Act, and all amendments, supplements and corrections thereto, to be filed by the Company with the Securities and Exchange Commission (the “SEC”), as required in connection with its registration under the 1934 Act, as amended; and (ii) one or more Registration Statements, on Form S-3, Form S-8 or other applicable forms, and all amendments, including post-effective amendments, thereto, to be filed by the Company with the SEC in connection with the registration under the Securities Act of 1933, as amended, of debt, equity or other securities of the Company, and to file the same, with all exhibits thereto and other supporting documents, with the SEC.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 22 nd day of February, 2012.
 
 
 /s/ Timothy V. Wolf
  Timothy V. Wolf
  Director


Exhibit 25.01
 
SECURITIES AND EXCHANGE COMMISSION
 
Washington, D.C.  20549
 
 
FORM T-1

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
 
 
x  CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)

WELLS FARGO BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)

A National Banking Association
 
94-1347393
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
 
(I.R.S. Employer
Identification No.)

101 North Phillips Avenue
Sioux Falls, South Dakota
 
 
57104
(Address of principal executive offices)
 
(Zip code)

Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth Street and Marquette Avenue, 17 th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name, address and telephone number of agent for service)
 
 
Xcel Energy Inc.
(Exact name of obligor as specified in its charter)

Minnesota
 
41-0448030
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)

414 Nicollet Mall
Minneapolis, Minnesota
 
 
55401
(Address of principal executive offices)
 
(Zip code)

 
Senior Debt Securities
Junior Subordinated Debt Securities
(Title of the indenture securities)

 
 
 

Item 1.
General Information.   Furnish the following information as to the trustee:

 
(a)
Name and address of each examining or supervising authority to which it is subject.

 
Comptroller of the Currency
 
Treasury Department
 
Washington, D.C.

 
Federal Deposit Insurance Corporation
 
Washington, D.C.

 
Federal Reserve Bank of San Francisco
 
San Francisco, California 94120

 
(b)
Whether it is authorized to exercise corporate trust powers.

 
The trustee is authorized to exercise corporate trust powers.

Item 2.
Affiliations with Obligor.   If the obligor is an affiliate of the trustee, describe each such affiliation.

 
 
None with respect to the trustee.

No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.

Item 15.   Foreign Trustee.
Not applicable.

Item 16.   List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.

 
Exhibit 1.
A copy of the Articles of Association of the trustee now in effect.*

 
Exhibit 2.
A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo Bank, National Association, dated February 4, 2004.**

 
Exhibit 3.
See Exhibit 2

 
Exhibit 4.
Copy of By-laws of the trustee as now in effect.***

 
Exhibit 5.
Not applicable.

 
Exhibit 6.
The consent of the trustee required by Section 321(b) of the Act.

 
Exhibit 7.
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority .

 
Exhibit 8.
Not applicable.

 
Exhibit 9.
Not applicable.

 
 
 
 
*      Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784-06.

**    Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form T-3 dated March 3, 2004 of file number 022-28721.

*** Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of file number 333-125274.
 
 
 
 

SIGNATURE

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York on the 22nd day of August, 2012.

 
WELLS FARGO BANK, NATIONAL ASSOCIATION
   
 
/s/  Martin G. Reed
 
 
Martin G. Reed
 
Vice President
 
 
 
 
 
EXHIBIT 6

August 22, 2012

Securities and Exchange Commission
Washington, D.C.  20549

Gentlemen:

In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 
Very truly yours,
   
 
WELLS FARGO BANK, NATIONAL ASSOCIATION
   
 
/s/  Martin G. Reed
 
 
Martin G. Reed
 
Vice President

 
 
 
 
Consolidated Report of Condition of

Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business June 30, 2012, filed in accordance with 12 U.S.C. §161 for National Banks.

         
Dollar Amounts
 
         
In Millions
 
         
 
 
ASSETS
           
Cash and balances due from depository institutions:
           
Noninterest-bearing balances and currency and coin
        $ 16,883  
Interest-bearing balances
          45,669  
Securities:
             
Held-to-maturity securities
          0  
Available-for-sale securities
          204,424  
Federal funds sold and securities purchased under agreements to resell:
             
Federal funds sold in domestic offices
          1,128  
Securities purchased under agreements to resell
          22,797  
Loans and lease financing receivables:
             
Loans and leases held for sale
          32,246  
Loans and leases, net of unearned income
    720,609          
LESS: Allowance for loan and lease losses
    15,480          
Loans and leases, net of unearned income and allowance
            705,129  
Trading Assets
            42,549  
Premises and fixed assets (including capitalized leases)
            7,760  
Other real estate owned
            4,168  
Investments in unconsolidated subsidiaries and associated companies
            563  
Direct and indirect investments in real estate ventures
            104  
Intangible assets
               
Goodwill
            21,543  
Other intangible assets
            21,240  
Other assets
            53,987  
                 
Total assets
          $ 1,180,190  
                 
LIABILITIES
               
Deposits:
               
In domestic offices
          $ 847,727  
Noninterest-bearing
    222,889          
Interest-bearing
    624,838          
In foreign offices, Edge and Agreement subsidiaries, and IBFs
            73,344  
Noninterest-bearing
    2,752          
Interest-bearing
    70,592          
Federal funds purchased and securities sold under agreements to repurchase:
               
Federal funds purchased in domestic offices
            6,913  
Securities sold under agreements to repurchase
            10,833  
 
 
 
 
 
             
Dollar Amounts
 
             
In Millions
 
                 
Trading liabilities
            23,373  
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
            41,997  
Subordinated notes and debentures
            16,602  
Other liabilities
            32,647  
                 
Total liabilities
          $ 1,053,436  
                 
EQUITY CAPITAL
               
Perpetual preferred stock and related surplus
            0  
Common stock
            519  
Surplus (exclude all surplus related to preferred stock)
            99,502  
Retained earnings
            19,574  
Accumulated other comprehensive income
            6,044  
Other equity capital components
            0  
                 
Total bank equity capital
            125,639  
Noncontrolling (minority) interests in consolidated subsidiaries
            1,115  
                 
Total equity capital
            126,754  
                 
Total liabilities, and equity capital
          $ 1,180,190  
 
I, Timothy J. Sloan, EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge
and belief.

 
Timothy J. Sloan
 
EVP & CFO

We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

John Stumpf
Directors
David Hoyt
 
Michael Loughlin