Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
PUBLIC SERVICE COMPANY OF COLORADO
(Exact name of registrant as specified in its charter)
Colorado 84-0296600
(State or other jurisdiction of (I.R.S. employer)
incorporation or organization) identification no.)
1225 17th Street
Denver, Colorado 80202-5533
(303) 571-7511
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
R.C. Kelly
Senior Vice President, Finance,
Treasurer and Chief Financial Officer
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202-5533
(303) 571-7511
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
Copies to:
J.H. Newman E. Ellsworth McMeen, III
Brown & Wood LLP LeBoeuf, Lamb, Greene & MacRae, L.L.P.
One World Trade Center 125 West 55th Street
New York, NY 10048 New York, New York 10019
_______________
Approximate date of commencement of proposed sale to the public: At such
time or times after the effective date of this Registration Statement as the
registrant shall determine based on market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
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. |_|
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.
|_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
____________
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Class of Amount to be Maximum Maximum Amount of
Securities to be Register Registered Offering Aggregate Registration
Price Offering Fee
Per Unit (1) Price (1)
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<S> <C> <C> <C> <C>
First Collateral Trust Bonds
(being one or more series
of medium-term notes) . . $400,000,000 100% $400,000,000 $121,213
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(1) Estimated solely for the purpose of calculating the registration fee.
</TABLE>
_________
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 24, 1996
PROSPECTUS SUPPLEMENT
(To Prospectus dated , 1996)
$250,000,000
[LOGO]
PUBLIC SERVICE COMPANY OF COLORADO
Secured Medium-Term Notes, Series B
(being a series of First Collateral Trust Bonds)
Due From Nine Months To Thirty
Years From Date of Issue
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Public Service Company of Colorado (the "Company") may offer from time to
time up to $250,000,000 aggregate principal amount of its Secured Medium-Term
Notes, Series B (being a series of First Collateral Trust Bonds) (the "Notes").
Each Note will mature on a date from nine months to thirty years from its date
of issue, as specified in the applicable pricing supplement hereto (each, a
"Pricing Supplement"), and may be subject to redemption at the option of the
Company or repayment at the option of the Holder thereof, in each case, in whole
or in part, prior to its Stated Maturity, and may be subject to redemption
pursuant to sinking fund or other mandatory redemption provisions, if specified
in the applicable Pricing Supplement. The Notes will be issued in minimum
denominations of $100,000 and any greater amount that is an integral multiple of
$1,000.
Each Note will bear interest at a fixed rate. Interest on each Note will
accrue from its date of issue and, unless otherwise specified in the applicable
Pricing Supplement, will be payable semiannually in arrears on February 1 and
August 1 of each year and at Maturity. Notes may also be issued that do not bear
any interest currently or that bear interest at a below market rate.
The variable terms of each Note will be established by the Company on the
date of issue of such Note and will be specified in the applicable Pricing
Supplement. Interest rates and other terms of the Notes are subject to change by
the Company, but no such change will affect any Note previously issued or as to
which an offer to purchase has been accepted by the Company.
Each Note will be issued in book-entry form (a "Book-Entry Note") or in
fully registered certificated form (a "Certificated Note"), as specified in the
applicable Pricing Supplement. Each Book-Entry Note will be represented by one
or more fully registered global securities (the "Global Securities") deposited
with or on behalf of The Depository Trust Company (or such other depositary
identified in the applicable Pricing Supplement) (the "Depositary") and
registered in the name of the Depositary or the Depositary's nominee. Interests
in the Global Securities will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary (with respect to its
participants) and the Depositary's participants (with respect to beneficial
owners). Except in limited circumstances, Book-Entry Notes will not be
exchangeable for Certificated Notes.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT, THE PROSPECTUS OR ANY
SUPPLEMENT HERETO. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
==============================================================+=================
Price to Agents' Discounts Proceeds to
Public(1) and Commissions(1)(2) Company (1)(3)
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Per Note........ 100% .125%-.750% 99.875%-99.250%
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Total .......... $250,000,000 $312,500-$1,875,000 $249,267,500-$247,705,000
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(1) Merrill Lynch & Co., Merill Lynch, Pierce, Fenner & Smith Incorporated and
Goldman, Sachs & Co. (the "Agents"), individually or in a syndicate, may
purchase Notes, as principal, from the Company for resale to investors and
other purchasers at varying prices relating to prevailing market prices at
the time of resale as determined by the applicable Agent or, if so
specified in the applicable Pricing Supplement, for resale at a fixed
offering price. Unless otherwise specified in the applicable Pricing
Supplement, any Note sold to an Agent as principal will be purchased by
such Agent at a price equal to 100% of the principal amount thereof less a
percentage of the principal amount equal to the commission applicable to an
agency sale (as described below) of a Note of identical maturity. If
requested by the Company and agreed to by an Agent, such Agent may utilize
its reasonable efforts on an agency basis to solicit offers to purchase the
Notes at 100% of the principal amount thereof, unless otherwise specified
in the applicable Pricing Supplement. The Company will pay a commission to
an Agent, ranging from .125% to .750% of the principal amount of a Note,
depending upon its stated maturity, sold through an Agent. See "Plan of
Distribution".
(2) The Company has agreed to indemnify the Agents against certain liabilities,
including liabilities under the Securities Act of 1933, as amended. See
"Plan of Distribution."
(3) Before deducting expenses payable by the Company estimated at $421,213.
---------------
The Notes are being offered on a continuing basis directly by the Company
or by the Company to or through the Agents. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be listed on any securities
exchange. There is no assurance that the Notes offered hereby will be sold or,
if sold, that there will be a secondary market for the Notes or liquidity in the
secondary market if one develops. The Company reserves the right to cancel or
modify the offer made hereby without notice. The Company or an Agent, if it
solicits the offer on an agency basis, may reject any offer to purchase Notes in
whole or in part. See "Plan of Distribution".
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Merrill Lynch & Co. Goldman, Sachs & Co.
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The date of this Prospectus Supplement is ________, 1996.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This preliminary prospectus supplement and the accompanying
prospectus shall not constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
<PAGE>
IN CONNECTION WITH AN OFFERING OF NOTES PURCHASED BY ONE OR MORE AGENTS AS
PRINCIPAL ON A FIXED OFFERING PRICE BASIS, SUCH AGENT(S) MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF NOTES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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SUPPLEMENTAL DESCRIPTION OF THE NOTES
The following description of the particular terms of the Notes
supplements, and to the extent inconsistent therewith replaces, the description
of the general terms and provisions of the Notes set forth under "Description of
the New Bonds" in the accompanying Prospectus, to which reference is hereby
made. Certain capitalized terms used herein are defined under "Description of
the New Bonds" in the accompanying Prospectus.
General
The Notes will be issued from time to time in an aggregate principal
amount not to exceed $250,000,000, as a series of First Collateral Trust Bonds
under the 1993 Mortgage. The Notes will be issued on the basis of Class A Bonds,
which are to be issued under the 1939 Mortgage. See "Description of the New
Bonds" in the accompanying Prospectus.
The Notes will be issued in fully registered form only, without coupons.
Each Note will be issued as a Book-Entry Note represented by one or more fully
registered Global Securities or as a Certificated Note. Except as set forth
herein under "Book-Entry Notes" or in any Pricing Supplement relating to
specific Notes, the Notes will not be issuable as Certificated Notes. The
authorized denominations of the Notes will be $100,000 and any greater amount
that is an integral multiple of $1,000.
Each Note will mature on a date from nine months to thirty years from its
date of issue. Each Note may also be subject to redemption prior to Stated
Maturity at the option of the Company or at the option of the Holder, and may be
subject to redemption pursuant to sinking fund or other mandatory redemption
provisions, all as may be set forth in the applicable Pricing Supplement.
The Pricing Supplement relating to a Note will describe the following
terms: (i) the price (expressed as a percentage of the aggregate principal
amount thereof) at which such Note will be issued; (ii) the date on which such
Note will be issued (the "Original Issue Date"); (iii) the date on which such
Note will mature (the "Stated Maturity"); (iv) the rate per annum at which such
Note will bear interest; (v) whether such Note may be redeemed at the option of
the Company prior to Stated Maturity as described under "Redemption at the
Option of the Company" below and, if so, the provisions relating to such
redemption; (vi) the obligation of the Company to redeem such Note pursuant to
any sinking fund or other mandatory redemption provisions applicable to such
Note; (vii) any provisions for the repayment of such Note at the option of the
Holder as described under "Repayment at the Option of the Holder" below; and
(vii) any other special terms of such Notes.
Interest rates offered by the Company with respect to the Notes may differ
depending upon, among other factors, the aggregate principal amount of Notes
purchased in any single transaction. Notes with different variable terms other
than interest rates may also be offered concurrently to different investors.
Interest rates and other terms of Notes are subject to change by the Company
from time to time, but no such change will affect any Note previously issued or
as to which an offer to purchase has been accepted by the Company.
Payment of Principal and Interest
Each Note will bear interest, computed on the basis of a 360-day year
consisting of twelve 30-day months, from its Original Issue Date at the rate per
annum stated on the face thereof and in the applicable Pricing Supplement until
the principal amount thereof is paid or duly made available for payment.
Interest on each Note
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will be payable semiannually in arrears on February 1 and August 1 in each year,
or such other dates as may be specified in the applicable Pricing Supplement
(each such date being hereinafter called an "Interest Payment Date") and at
maturity (whether at Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise, hereinafter "Maturity"). Unless otherwise specified
in the applicable Pricing Supplement, interest payments will be made in an
amount equal to the interest accrued from and including the immediately
preceding Interest Payment Date in respect of which interest has been paid or
duly made available for payment (or from and including the Original Issue Date,
if no interest has been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or the Stated Maturity, as the
case may be.
Payments of interest on the Notes (other than interest payable at
Maturity) will be made, except as provided below, by check mailed to the Holders
of such Notes as of the Record Date (as hereinafter defined) next preceding each
Interest Payment Date, except that (a) in the case of Global Securities
representing Book-Entry Notes, such payment will be made in accordance with
arrangements then in effect among the Company, the 1993 Mortgage Trustee and the
Depository, (b) if the Original Issue Date of a Note is after a Record Date and
before the corresponding Interest Payment Date, the first payment of interest on
such Note will be made on the next succeeding Interest Payment Date to the
Holder of such Note on the Record Date with respect to such succeeding Interest
Payment Date and (c) if the Company defaults in the payment of the interest due
on any Note on any Interest Payment Date, such defaulted interest will be
payable to the Holder of such Note as of a Special Record Date fixed by the 1993
Mortgage Trustee, which shall be not more than 30 days and not less than 10 days
prior to the date of payment of such defaulted interest, or payable to the
Holder in such other manner as permitted by the 1993 Mortgage. See "Book-Entry
Notes". Unless otherwise specified in the applicable Pricing Supplement, the
"Record Date" with respect to each Interest Payment Date will be the January 15
or July 15, as the case may be, next preceding such Interest Payment Date.
Unless otherwise specified in the applicable Pricing Supplement, the
principal of, premium, if any, and interest on any Note payable at Maturity will
be paid upon surrender thereof at the office of the 1993 Mortgage Trustee.
If the date of making any payment with respect to a Note is not a Business
Day, such payment may be made on the next succeeding Business Day, and if
payment is made or duly provided for on such succeeding Business Day no interest
shall accrue for the period from and after such Interest Payment Date. "Business
Day" means any day other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in The City of New York are generally
authorized or required by law, regulation or executive order to remain closed.
Redemption at the Option of the Company
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will not be subject to any sinking fund. The Notes will be redeemable at the
option of the Company prior to Stated Maturity only if an Initial Redemption
Date is specified in the applicable Pricing Supplement. If so specified, the
Notes will be subject to redemption at the option of the Company on any date on
and after the applicable Initial Redemption Date in whole or from time to time
in part in increments of $1,000 (provided that any remaining principal amount
thereof shall be at least $100,000), at the applicable Redemption Price (as
hereinafter defined), together with unpaid interest accrued thereon to the date
of redemption, on written notice given to the Holders thereof not more than 60
nor less than 30 calendar days prior to the date of redemption and in accordance
with the provisions of the 1993 Mortgage. "Redemption Price", with respect to a
Note, means an amount equal to the Initial Redemption Percentage specified in
the applicable Pricing Supplement (as adjusted by the Annual Redemption
Percentage Reduction, if applicable) multiplied by the unpaid principal amount
to be redeemed. The Initial Redemption Percentage, if any, applicable to a Note
shall decline at each anniversary of the Initial Redemption Date by an amount
equal to the applicable Annual Redemption Percentage Reduction, if any, until
the Redemption Price is equal to 100% of the unpaid principal amount to be
redeemed.
S-3
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Repayment at the Option of the Holder
The Notes will be repayable by the Company at the option of the Holders
thereof prior to the Stated Maturity thereof only if one or more Optional
Repayment Dates are specified in the applicable Pricing Supplement. If so
specified, the Notes will be subject to repayment at the option of the Holders
thereof on any Optional Repayment Date in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal amount thereof shall
be at least $100,000), at a repayment price equal to 100% of the unpaid
principal amount to be repaid, together with unpaid interest accrued thereon to
the date of repayment. For any Note to be repaid, such Note must be received,
together with the form thereon entitled "Option to Elect Repayment" duly
completed, at the office of the 1993 Mortgage Trustee, not more than 60 nor less
than 30 calendar days prior to the date of repayment. Exercise of such repayment
option by the Holder will be irrevocable.
Only the Depositary may exercise the repayment option in respect of Global
Securities representing Book- Entry Notes. Accordingly, Beneficial Owners (as
hereinafter defined) of Global Securities that desire to have all or any portion
of the Book-Entry Notes represented by such Global Securities repaid must
instruct the Participant (as hereinafter defined) through which they own their
interest to direct the Depositary to exercise the repayment option on their
behalf by delivering the related Global Security and duly completed election
form to the 1993 Mortgage Trustee as aforesaid. In order to ensure that such
Global Security and election form are received by the 1993 Mortgage Trustee on a
particular day, the applicable Beneficial Owner must so instruct the Participant
through which it owns its interest before such Participant's deadline for
accepting instructions for that day. Different firms may have different
deadlines for accepting instructions from their customers. Accordingly,
Beneficial Owners should consult the Participants through which they own their
interest for the respective deadlines for such Participants. All instructions
given to Participants from Beneficial Owners of Global Securities relating to
the option to elect repayment shall be irrevocable. In addition, at the time
such instructions are given, each such Beneficial Owner shall cause the
Participant through which it owns its interest to transfer such Beneficial
Owner's interest in the Global Security or Securities representing the related
Book-Entry Notes, on the Depositary's records, to the 1993 Mortgage Trustee. See
"Book-Entry Notes".
If applicable, the Company will comply with the requirements of Section
14(e) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules promulgated thereunder, and any other securities laws or
regulations in connection with any such repayment.
The Company may at any time purchase Notes at any price or prices in the
open market or otherwise. Notes so purchased by the Company may, at the
discretion of the Company, be held, resold or surrendered to the Trustee for
cancellation.
Book-Entry Notes
The Company has established a depositary arrangement with The Depository
Trust Company with respect to the Book-Entry Notes, the terms of which are
summarized below. Any additional or differing terms of the depositary
arrangement with respect to the Book-Entry Notes will be described in the
applicable Pricing Supplement.
Upon issuance, all Book-Entry Notes of like tenor and terms up to
$200,000,000 aggregate principal amount will be represented by a single Global
Security. Each Global Security representing Book-Entry Notes will be deposited
with, or on behalf of, the Depositary and will be registered in the name of the
Depositary or a nominee of the Depositary. No Global Security may be transferred
except as a whole by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or such nominee to a successor
of the Depositary or a nominee of such successor.
So long as the Depositary or its nominee is the registered owner of a
Global Security, the Depositary or its nominee, as the case may be, will be the
sole Holder of the Book-Entry Notes represented thereby for all purposes under
the 1993 Mortgage. Except as otherwise provided below, the Beneficial Owners of
the Global Security or Securities representing Book-Entry Notes will not be
entitled to receive physical delivery of Certificated Notes and will not be
considered the Holders thereof for any purpose under the 1993 Mortgage, and no
Global
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Security representing Book-Entry Notes shall be exchangeable or transferable.
Accordingly, each Beneficial Owner must rely on the procedures of the Depositary
and, if such Beneficial Owner is not a Participant, on the procedures of the
Participant through which such Beneficial Owner owns its interest in order to
exercise any rights of a Holder under such Global Security or the 1993 Mortgage.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in certificated form. Such limits and
laws may impair the ability to transfer beneficial interests in a Global
Security representing Book-Entry Notes.
Unless otherwise specified in the applicable Pricing Supplement, each
Global Security representing Book-Entry Notes will be exchangeable for
Certificated Notes of like tenor and terms and of differing authorized
denominations in a like aggregate principal amount, only if (i) the Depositary
notifies the Company and the 1993 Mortgage Trustee that it is unwilling or
unable to continue as Depositary for the Global Securities or the Company
becomes aware that the Depositary has ceased to be a clearing agency registered
under the Exchange Act and, in any such case, the Company shall not have
appointed a successor to the Depositary within 90 days thereafter, (ii) the
Company, in its sole discretion, determines that the Global Securities shall be
exchangeable for Certificated Notes or (iii) an Event of Default shall have
occurred and be continuing with respect to the Notes under the 1993 Mortgage,
the 1993 Mortgage Trustee shall have given notice thereof to the Holders, and
there shall have been delivered to the Company and the 1993 Mortgage Trustee an
Opinion of Counsel to the effect that the interests of the beneficial owners of
the Global Securities will be materially impaired unless such owners become
Holders of Certificated Notes. Upon any such exchange, the Certificated Notes
shall be registered in the names of the Beneficial Owners of the Global Security
or Securities representing Book-Entry Notes, which names shall be provided by
the Depositary's relevant Participants (as identified by the Depositary) to the
1993 Mortgage Trustee.
The following is based on information furnished by the Depositary:
The Depositary will act as securities depository for the Book-Entry
Notes. The Book-Entry Notes will be issued as fully registered securities
registered in the name of Cede & Co. (the Depositary's partnership
nominee). One fully registered Global Security will be issued for each
issue of Book-Entry Notes, each in the aggregate principal amount of such
issue, and will be deposited with the Depositary. If, however, the
aggregate principal amount of any issue exceeds $200,000,000, one Global
Security will be issued with respect to each $200,000,000 of principal
amount and an additional Global Security will be issued with respect to
any remaining principal amount of such issue.
The Depositary 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. The Depositary holds
securities that its participants ("Participants") deposit with the
Depositary. The Depositary also facilitates the settlement among
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement
of securities certificates. Direct Participants of the Depositary ("Direct
Participants") include securities brokers and dealers (including the
Agents), banks, trust companies, clearing corporations and certain other
organizations. The Depositary is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc.
Access to the Depositary's system is also available to others such as
securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The rules
applicable to the Depositary and its Participants are on file with the
Securities and Exchange Commission.
Purchases of Book-Entry Notes under the Depositary's system must be
made by or through Direct Participants, which will receive a credit for
such Book-Entry Notes on the Depositary's records. The ownership interest
of each actual purchaser of each Book-Entry Note represented by a Global
Security ("Beneficial Owner") is in turn to be recorded on the records of
Direct Participants and Indirect Participants. Beneficial Owners will not
receive written confirmation from the Depositary of their
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purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct Participants or Indirect
Participants through which such Beneficial Owner entered into the
transaction. Transfers of ownership interests in a Global Security
representing Book-Entry Notes are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners of a Global Security representing Book-Entry Notes will
not receive Certificated Notes representing their ownership interests
therein, except in the event that use of the book-entry system for such
Book-Entry Notes is discontinued.
To facilitate subsequent transfers, all Global Securities
representing Book-Entry Notes which are deposited with, or on behalf of,
the Depositary are registered in the name of the Depositary's nominee,
Cede & Co. The deposit of Global Securities with, or on behalf of, the
Depositary and their registration in the name of Cede & Co. effect no
change in beneficial ownership. The Depositary has no knowledge of the
actual Beneficial Owners of the Global Securities representing the
Book-Entry Notes; the Depositary's records reflect only the identity of
the Direct Participants to whose accounts such Book-Entry Notes are
credited, which may or may not be the Beneficial Owners. The Participants
will remain responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by the Depositary 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.
Neither the Depositary nor Cede & Co. will consent or vote with
respect to the Global Securities representing the Book-Entry Notes. Under
its usual procedures, the Depositary mails an Omnibus Proxy to the Company
as soon as possible after the applicable record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Book-Entry Notes are credited on the
applicable record date (identified in a listing attached to the Omnibus
Proxy).
Principal, premium, if any, and/or interest, if any, payments on the
Global Securities representing the Book-Entry Notes will be made in
immediately available funds to the Depositary. The Depositary's practice
is to credit Direct Participants' accounts on the applicable payment date
in accordance with their respective holdings shown on the Depositary's
records unless the Depositary has reason to believe that it will not
receive payment on such date. Payments by Participants to Beneficial
Owners 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", and will be the responsibility
of such Participant and not of the Depositary, the 1993 Mortgage Trustee
or the Company, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of principal, premium, if any,
and/or interest, if any, to the Depositary is the responsibility of the
Company and the 1993 Mortgage Trustee, disbursement of such payments to
Direct Participants shall be the responsibility of the Depositary, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct Participants and Indirect Participants.
If applicable, redemption notices shall be sent to Cede & Co. If
less than all of the Book-Entry Notes of like tenor and terms are being
redeemed, the Depositary's practice is to determine by lot the amount of
the interest of each Direct Participant in such issue to be redeemed.
A Beneficial Owner shall give notice of any option to elect to have
its Book-Entry Notes repaid by the Company, through its Participant, to
the 1993 Mortgage Trustee, and shall effect delivery of such Book-Entry
Notes by causing the Direct Participant to transfer the Participant's
interest in the Global Security or Securities representing such Book-Entry
Notes, on the Depositary's records, to the 1993 Mortgage Trustee. The
requirement for physical delivery of Book-Entry Notes in connection with a
demand for repayment will be deemed satisfied when the ownership rights in
the Global Security or Securities representing such Book-Entry Notes are
transferred by Direct Participants on the Depositary's records.
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The Depositary may discontinue providing its services as securities
depository with respect to the Book-Entry Notes at any time by giving
reasonable notice to the Company or the 1993 Mortgage Trustee. Under such
circumstances, in the event that a successor securities depository is not
obtained, Certificated Notes are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor securities depository). In that
event, Certificated Notes will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's system has been obtained from sources that the Company believes to
be reliable, but the Company takes no responsibility for the accuracy thereof.
None of the Company, the 1993 Mortgage Trustee or any agent for payment on
or registration of transfer or exchange of the Notes will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in such Global Note or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
S-7
<PAGE>
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis for sale directly by the
Company or by the Company to or through Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Goldman, Sachs & Co. (the "Agents"). The
Agents, individually or in a syndicate, may purchase Notes, as principal, from
the Company from time to time for resale to investors and other purchasers at
varying prices relating to prevailing market prices at the time of resale as
determined by the applicable Agent or, if so specified in the applicable Pricing
Supplement, for resale at a fixed offering price. If agreed to by the Company
and an Agent, such Agent may also utilize its reasonable efforts on an agency
basis to solicit offers to purchase the Notes at 100% of the principal amount
thereof, unless otherwise specified in the applicable Pricing Supplement. The
Company will pay a commission to an Agent, ranging from .125% to .750% of the
principal amount of each Note, depending upon its stated maturity, sold through
such Agent as an agent of the Company.
Unless otherwise specified in the applicable Pricing Supplement, any Note
sold to an Agent as principal will be purchased by such Agent at a price equal
to 100% of the principal amount thereof less a percentage of the principal
amount equal to the commission applicable to an agency sale of a Note of
identical maturity. An Agent may sell Notes it has purchased from the Company as
principal to certain dealers less a concession equal to all or any portion of
the discount received in connection with such purchase. Such Agent may allow,
and such dealers may reallow, a discount to certain other dealers. After the
initial offering of Notes, the offering price (in the case of Notes to be resold
on a fixed offering price basis), the concession and the reallowance may be
changed.
The Company reserves the right to withdraw, cancel or modify the offer
made hereby without notice and may reject offers in whole or in part (whether
placed directly with the Company or through an Agent). Each Agent will have the
right, in its discretion reasonably exercised, to reject in whole or in part any
offer to purchase Notes received by it on an agency basis.
Unless otherwise specified in the applicable Pricing Supplement, payment
of the purchase price of the Notes will be required to be made in immediately
available funds in The City of New York on the date of settlement.
Upon issuance, the Notes will not have an established trading market. The
Notes will not be listed on any securities exchange. The Agents may from time to
time purchase and sell Notes in the secondary market, but the Agents are not
obligated to do so, and there can be no assurance that there will be a secondary
market for the Notes or that there will be liquidity in the secondary market if
one develops. From time to time, the Agents may make a market in the Notes, but
the Agents are not obligated to do so and may discontinue any market-making
activity at any time.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). The Company has
agreed to indemnify the Agents against certain liabilities (including
liabilities under the Securities Act). The Company has agreed to reimburse the
Agents for certain other expenses.
In the ordinary course of its business, the Agents and their affiliates
have engaged and may in the future engage in investment and commercial banking
transactions with the Company and certain of its affiliates.
S-8
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 24, 1996
PROSPECTUS
$400,000,000
[Logo]
FIRST COLLATERAL TRUST BONDS
PUBLIC SERVICE COMPANY OF COLORADO
---------------
Public Service Company of Colorado (the "Company") intends to offer from
time to time up to $400,000,000 aggregate principal amount of its First
Collateral Trust Bonds in one or more series of medium-term notes (the "New
Bonds"), on terms to be determined at the time or times of sale.
For each offering of the New Bonds for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (each a
"Prospectus Supplement") that will set forth where applicable, with respect to
the New Bonds, the series designation, the aggregate principal amount of the
series, the maturity date or dates, the interest rate or rates and times of
payment of interest, the provisions for redemption, if any, and other
provisions, together with the initial public offering price and the terms of
offering of such New Bonds.
The New Bonds may be sold by the Company through underwriters or dealers,
directly by the Company or through agents for offering pursuant to the terms
fixed at the time of sale. See "PLAN OF DISTRIBUTION" herein.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is ________ __, 1996.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC") and the New York, Chicago and
Pacific Stock Exchanges. Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
SEC at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C., and
at the following regional offices of the SEC: New York Regional Office, 13th
Floor, Seven World Trade Center, New York, New York, and the Chicago Regional
Office, 14th Floor, 500 West Madison Street, Chicago, Illinois. Copies of this
material can also be obtained at prescribed rates from the Public Reference
Section of the SEC at its principal office at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 or from the SEC's Web site at "http://www.gov".
Certain of the Company's securities are listed on the New York, Chicago and
Pacific Stock Exchanges and such reports, proxy statements and other information
can also be inspected and copied at the offices of the New York Stock Exchange,
located on the 7th Floor, 20 Broad Street, New York, New York; the Chicago Stock
Exchange, located on the 12th Floor, 440 South LaSalle Street, Chicago,
Illinois; and the Pacific Stock Exchange, located at 301 Pine Street, San
Francisco, California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates herein by reference the following
documents which have been filed by the Company with the SEC pursuant to the
Exchange Act:
1. Annual Report on Form 10-K for the year ended December 31, 1995.
2. Quarterly Report on Form 10-Q for the quarter ending March 31, 1996.
3. Quarterly Report on Form 10-Q for the quarter ending June 30, 1996.
4. Current Reports on Form 8-K dated January 18, 1996, January 31, 1996
and May 21, 1996.
All documents filed by the Company with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering made hereby shall be deemed to be incorporated
herein by reference and to be a part hereof from the respective dates of filing
thereof. The documents incorporated or deemed to be incorporated herein by
reference are sometimes hereinafter called the "Incorporated Documents". Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for all purposes to the extent that a statement contained herein
or in any Prospectus Supplement or in any subsequently filed Incorporated
Document modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
2
<PAGE>
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of any such person, a copy of any or
all of the Incorporated Documents, excluding the exhibits thereto unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such documents should be directed to Richard C. Kelly, Senior Vice
President, Finance, Treasurer and Chief Financial Officer, by mail at 1225 17th
Street, Suite 900, Denver, Colorado 80202-5533, or by telephone at (303)
571-7511.
THE COMPANY
The Company, incorporated through merger of predecessors under the laws of
the State of Colorado in 1924, is an operating public utility engaged, together
with its subsidiaries, principally in the generation, purchase, transmission,
distribution and sale of electricity and in the purchase, transmission,
distribution, sale and transportation of natural gas, with the Company's
principal distribution center being the Denver metropolitan area. The Company's
executive offices are located at 1225 17th Street, Denver, Colorado 80202-5533,
where the telephone number is (303) 571-7511.
The Incorporated Documents contain information with respect to the
proposed mergers of two wholly-owned subsidiaries of New Century Energies, Inc.
("New Century"), a newly formed holding company, into the Company and
Southwestern Public Service Company ("SPS"), respectively. As a result, New
Century would become the holding company for the Company and SPS, but the
transaction would not affect the outstanding debt of the Company or the New
Bonds offered hereby. The transaction would result in the common shareholders of
the Company owning approximately 62% of the common equity of New Century and the
common shareholders of SPS owning approximately 38% of the common equity of New
Century.
The transaction is subject to customary closing conditions, including,
without limitation, the receipt of all necessary governmental approvals and the
making of all necessary governmental filings. Furthermore, the merger agreement
may be terminated under certain circumstances, including, without limitation, by
mutual written consent of the Boards of Directors of the Company and SPS.
Following the transaction, New Century will maintain its corporate offices
in Denver, Colorado and significant operating offices in Amarillo, Texas. The
headquarters of the Company and SPS will remain in their current locations, and
each of the Company and SPS will continue their existing utility operations.
3
<PAGE>
<TABLE>
<CAPTION>
RATIO OF CONSOLIDATED EARNINGS TO
CONSOLIDATED FIXED CHARGES
Twelve Months Ended Six Months
December 31, Ended June 30,
<S> <C> <C> <C> <C> <C> <C>
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- ----
Ratio of consolidated 2.94 2.43 2.54 2.53 2.78 2.95
earnings to consolidated
fixed charges
</TABLE>
APPLICATION OF PROCEEDS
Except as may be otherwise provided in the applicable Prospectus
Supplement or any supplement thereto, the net proceeds from the sale of the New
Bonds will be used to refinance matured or maturing debt incurred to fund
defueling expenses of the Company's Fort St. Vrain Nuclear Generating Station,
to fund the Company's construction program and for other general corporate
purposes.
DESCRIPTION OF THE NEW BONDS
General: The New Bonds will be issued in one or more series as fully
registered bonds, without coupons, under an Indenture, dated as of October 1,
1993 (the "Original 1993 Mortgage"), between the Company and First Trust of New
York, National Association, as successor trustee (together with any further
successor thereto, the "1993 Mortgage Trustee"). The Original 1993 Mortgage, as
supplemented and to be supplemented by various supplemental indentures,
including one or more supplemental indentures relating to the New Bonds, is
hereinafter referred to as the "1993 Mortgage". The summaries under this heading
do not purport to be complete and are subject to, and qualified in their
entirety by, the detailed provisions of the 1993 Mortgage. Capitalized terms
used under this heading which are not otherwise defined in this Prospectus shall
have the meanings ascribed thereto in the 1993 Mortgage. Wherever particular
provisions of the 1993 Mortgage or terms defined therein are referred to, such
provisions or definitions are incorporated by reference as a part of the
statements made herein and such statements are qualified in their entirety by
such reference. References to article and section numbers herein, unless
otherwise indicated, are references to article and section numbers of the
Original 1993 Mortgage.
The 1993 Mortgage provides that, in addition to the New Bonds, other debt
securities may be issued thereunder, without limitation as to the aggregate
principal amount, on the basis of Class A Bonds (as hereinafter defined),
property additions, retired Mortgage Securities (as hereinafter defined) and
cash. (See "Issuance of Additional Mortgage Securities".) The New Bonds and all
other debt securities heretofore or hereafter issued under the 1993 Mortgage are
collectively referred to herein as the "Mortgage Securities" or the "Bonds".
4
<PAGE>
Reference is made to the Prospectus Supplement and any supplement thereto
for a description of the following terms of the series of New Bonds in respect
of which this Prospectus is being delivered: (i) the title of such New Bonds;
(ii) the aggregate principal amount of such New Bonds; (iii) the price
(expressed as a percentage of principal amount) at which such New Bonds will be
issued; (iv) the date or dates on which the principal of such New Bonds is
payable; (v) the rate or rates at which such New Bonds will bear interest, the
date or dates from which such interest will accrue, the dates on which such
interest will be payable ("Interest Payment Dates"), and the regular record
dates for the interest payable on such Interest Payment Dates; (vi) the option,
if any, of the Company to redeem such New Bonds and the period or periods within
which, or the date or dates on which, the prices at which and the terms and
conditions upon which, such New Bonds may be redeemed, in whole or in part, upon
the exercise of such option; (vii) the obligation, if any, of the Company to
redeem or purchase such New Bonds at the option of the registered holder or
pursuant to any sinking fund or analogous provisions and the period or periods
within which, or the date or dates on which, the price or prices at which and
the terms and conditions upon which such New Bonds will be redeemed or
purchased, in whole or in part, pursuant to such obligation; (viii) the
denominations in which such New Bonds will be issuable, if other than $1,000 and
integral multiples thereof; (ix) whether such New Bonds are to be issued in
whole or in part in book-entry form and represented by one or more global New
Bonds and, if so, the identity of the depositary for such global New Bonds; and
(x) any other terms of such New Bonds, including with respect to any series, if
applicable, any consents to modifications or waivers of covenants in the 1993
Mortgage or the 1939 Mortgage (as defined below)
Payment of Bonds; Transfers; Exchanges: Except as may be provided in the
applicable Prospectus Supplement or any supplement thereto, interest, if any, on
each Bond payable on each Interest Payment Date will be paid to the person in
whose name such Bond is registered (the registered holder of any Mortgage
Security being hereinafter called a "Holder") as of the close of business on the
regular record date relating to such Interest Payment Date; provided, however,
that interest payable at maturity (whether at stated maturity, upon redemption
or otherwise, hereinafter "Maturity") will be paid to the person to whom
principal is paid at Maturity. However, if there has been a default in the
payment of interest on any Bond, such defaulted interest may be payable to the
Holder of such Bond as of the close of business on a date selected by the
Trustee which is not more than 30 days and not less than 10 days prior to the
date proposed by the Company for payment of such defaulted interest or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Bond may be listed, if the Trustee deems such manner of
payment practicable. (See Section 307.)
Unless otherwise specified in a Prospectus Supplement or supplement
thereto, the principal of and premium, if any, and interest on the Bonds due at
Maturity will be payable upon presentation of the Bonds at the corporate trust
office of First Trust of New York, National Association, in New York, New York,
as Paying Agent for the Company. The Company may change the Place of Payment on
the Bonds, may appoint one or more additional Paying Agents (including the
Company) and may remove any Paying Agent, all
5
<PAGE>
at its discretion. (See Section 602 and Article 1 of the Supplemental
Indenture(s) relating to the New Bonds.)
Unless otherwise specified in a Prospectus Supplement or supplement
thereto, the transfer of Bonds may be registered, and Bonds may be exchanged for
other Bonds of the same series and tranche, of authorized denominations and of
like tenor and aggregate principal amount, at the corporate trust office of
First Trust of New York, National Association, in New York, New York, as
Security Registrar for the Bonds. The Company may change the place for
registration of transfer and exchange of the Bonds, and may designate one or
more additional places for such registration and exchange, all at its
discretion. (See Section 602.) Except as otherwise provided in the applicable
Prospectus Supplement or a supplement thereto, no service charge will be made
for any transfer or exchange of the Bonds, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of the
Bonds. The Company will not be required to execute or to provide for the
registration of transfer of or the exchange of (a) any Bond during a period of
15 days prior to giving any notice of redemption or (b) any Bond selected for
redemption in whole or in part, except the unredeemed portion of any Bond being
redeemed in part. (See Section 305.)
Redemption: Any terms for the optional or mandatory redemption of New
Bonds will be set forth in the Prospectus Supplement or a supplement thereto.
Except as shall otherwise be provided in the applicable Prospectus Supplement or
a supplement thereto with respect to Bonds redeemable at the option of the
Holder, Bonds will be redeemable only upon notice by mail not less than 30 nor
more than 60 days prior to the date fixed for redemption, and, if less than all
the Bonds of a series, or any tranche thereof, are to be redeemed, the
particular Bonds to be redeemed will be selected by such method as shall be
provided for any particular series, or in the absence of any such provision, by
such method of random selection as the Security Registrar deems fair and
appropriate. (See Sections 503 and 504.)
Any notice of redemption at the option of the Company may state that such
redemption will be conditional upon receipt by the Paying Agent or Agents, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Bonds and that
if such money has not been so received, such notice will be of no force and
effect and the Company will not be required to redeem such Bonds. (See Section
504.)
While the Original 1993 Mortgage contains provisions for the maintenance
of the Mortgaged Property, it does not contain any provisions for a maintenance
or sinking fund and, except as may be provided in the applicable Prospectus
Supplement or a supplement thereto, there will be no provisions for any such
funds for the New Bonds.
6
<PAGE>
Security: General. Except as discussed under this heading and under
"Issuance of Additional Mortgage Securities" below, all Mortgage Securities now
or hereafter issued under the 1993 Mortgage will be secured, equally and
ratably, primarily by
(a) an equal principal amount of first mortgage bonds (which need
not bear interest) issued under the Company's Indenture, dated as of
December 1, 1939 (the "Original 1939 Mortgage"), between the Company and
First Trust of New York, National Association, as successor trustee
(together with any further successor thereto, the "1939 Mortgage
Trustee"), and delivered to the Trustee under the 1993 Mortgage (the
Original 1939 Mortgage, as amended and supplemented, being hereinafter
called the "1939 Mortgage"). As discussed under "DESCRIPTION OF THE 1939
MORTGAGE--Security", the 1939 Mortgage constitutes, subject to certain
exceptions, a first mortgage lien on substantially all properties of the
Company; and
(b) the lien of the 1993 Mortgage on substantially all of the
Company's properties used or to be used in or in connection with the
business of generating, purchasing, transmitting, distributing and/or
selling electric energy (the "Electric Utility Business"), which lien is
junior to the lien of the 1939 Mortgage.
As discussed below under "Class A Bonds", following a merger or
consolidation of another corporation into the Company or the transfer to the
Company of property subject to the lien of an existing mortgage and the
assumption by the Company of all the obligations of the mortgagor under such
mortgage, the Company could deliver to the 1993 Mortgage Trustee bonds issued
under a mortgage existing on the properties acquired in such transaction in lieu
of or in addition to bonds issued under the 1939 Mortgage. In such event, the
Mortgage Securities would be secured, additionally, by such bonds and by the
lien of the 1993 Mortgage on such properties, which would be junior to the liens
of such existing mortgage and the 1939 Mortgage on such properties. The 1939
Mortgage and all such other mortgages are hereinafter collectively referred to
as "Class A Mortgages", and all bonds issued under the Class A Mortgages and
delivered to the 1993 Mortgage Trustee are hereinafter collectively referred to
as "Class A Bonds". If and when no Class A Mortgages are in effect, the 1993
Mortgage will constitute a first mortgage lien on all property of the Company
subject thereto, subject to certain Permitted Liens (as discussed below under
"Lien of the 1993 Mortgage.") As discussed below under "Class A Bonds", at the
date of this Prospectus the only Class A Mortgage is the 1939 Mortgage. The
Company currently believes that it is possible that, prior to the Stated
Maturity of the New Bonds, all Class A Bonds outstanding under the 1939
Mortgage, other than Class A Bonds delivered to and held by the 1993 Mortgage
Trustee as the basis of authentication and delivery of Mortgage Securities, may
have been paid, redeemed or otherwise retired and that, thereupon, the Class A
Bonds issued under the 1939 Mortgage would be surrendered for cancellation and
the 1939 Mortgage would be discharged. Upon discharge of the 1939 Mortgage and
assuming no other Class A Mortgage exists at the time, the 1993 Mortgage would
become a first mortgage lien on all property of the Company subject thereto,
subject to certain Permitted Liens.
7
<PAGE>
Class A Bonds. Class A Bonds issued as the basis for the authentication
and delivery of Mortgage Securities will be issued and delivered to, and
registered in the name of, the 1993 Mortgage Trustee or its nominee and will be
owned and held by the 1993 Mortgage Trustee, subject to the provisions of the
1993 Mortgage, for the benefit of the Holders of all Mortgage Securities
Outstanding from time to time, and the Company will have no interest in such
Class A Bonds. Class A Bonds issued as the basis of authentication and delivery
of Mortgage Securities (a) will mature or be subject to mandatory redemption on
the same dates, and in the same principal amounts, as such Mortgage Securities
and (b) will contain, in addition to any mandatory redemption provisions
applicable to all Class A Bonds Outstanding under the related Class A Mortgage,
mandatory redemption provisions correlative to provisions for mandatory
redemption of such Mortgage Securities (pursuant to a sinking fund or
otherwise), or for redemption at the option of the Holder of such Mortgage
Securities. Class A Bonds issued as the basis for authentication and delivery of
a series or tranche of Mortgage Securities (x) may, but need not, bear interest,
any such interest to be payable at the same times as interest on the Mortgage
Securities of such series or tranche and (y) may, but need not, contain
provisions for the redemption thereof at the option of the Company, any such
redemption to be made at a redemption price or prices not less than the
principal amount of such Class A Bonds. (See Sections 402 and 701.) To the
extent that Class A Bonds issued as the basis for the authentication and
delivery of New Bonds do not bear interest, holders of Mortgage Securities will
not have the benefit of the lien of the 1939 Mortgage in respect of an amount
equal to accrued interest, if any, on such New Bonds; however, such holders will
nevertheless have the benefit of the lien of the 1993 Mortgage in respect of
such amount.
Any payment by the Company of principal of, or premium or interest on, the
Class A Bonds held by the 1993 Mortgage Trustee will be applied by the 1993
Mortgage Trustee to the payment of any principal, premium or interest, as the
case may be, in respect of the Mortgage Securities which is then due and, to the
extent of such application, the obligation of the Company under the 1993
Mortgage to make such payment in respect of the Mortgage Securities will be
deemed satisfied and discharged. If, at the time of any such payment of
principal of Class A Bonds, there shall be no principal then due in respect of
the Mortgage Securities, such payment in respect of the Class A Bonds will be
deemed to constitute Funded Cash and will be held by the 1993 Mortgage Trustee
as part of the Mortgaged Property, to be withdrawn, used or applied as provided
in the 1993 Mortgage; and thereafter the Mortgage Securities authenticated and
delivered on the basis of such Class A Bonds will, to the extent of such payment
of principal, be deemed to have been authenticated and delivered on the basis of
the deposit of cash. If, at the time of any such payment of premium or interest
on Class A Bonds, there shall be no premium or interest, as the case may be,
then due in respect of the Mortgage Securities, such payment will be remitted to
the Company at its request; provided, however, that, if an Event of Default, as
described below, shall have occurred and be continuing, such payment shall be
held as part of the Mortgaged Property until such Event of Default shall have
been cured or waived. (See Section 702 and "Withdrawal of Cash" below.) Any
payment by the Company of principal of, or premium or interest on, Mortgage
Securities authenticated and delivered on the basis of the issuance and delivery
to the 1993 Mortgage Trustee of Class A Bonds (other
8
<PAGE>
than by application of the proceeds of a payment in respect of such Class A
Bonds) will, to the extent thereof, be deemed to satisfy and discharge the
obligation of the Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of such Class A Bonds which is then
due. (See Section 702 and Article One of the Supplemental Indenture(s) to the
1939 Mortgage creating the Class A Bonds to be delivered in connection with the
issuance of the New Bonds.)
The 1993 Mortgage Trustee may not sell, assign or otherwise transfer any
Class A Bonds except to a successor trustee under the 1993 Mortgage. (See
Section 704.) At the time any Mortgage Securities of any series or tranche,
which have been authenticated and delivered upon the basis of the issuance and
delivery to the 1993 Mortgage Trustee of Class A Bonds, cease to be Outstanding
(other than as a result of the application of the proceeds of the payment or
redemption of such Class A Bonds), the 1993 Mortgage Trustee will surrender to
or upon the order of the Company an equal principal amount of such Class A
Bonds. (See Section 703.)
At the date of this Prospectus, the only Class A Mortgage is the 1939
Mortgage and the only Class A Bonds issuable at this time are first mortgage
bonds issuable thereunder. The 1993 Mortgage provides that, in the event that a
corporation which was a mortgagor under an existing mortgage has merged into or
consolidated with the Company, or a corporation has conveyed or otherwise
transferred property to the Company subject to the lien of an existing mortgage
and the Company has assumed all the obligations of the mortgagor under such
existing mortgage, and in either case such existing mortgage constitutes a lien
on properties of such other corporation or on such transferred properties, as
the case may be, prior to the lien of the 1993 Mortgage, such existing mortgage
may be designated by the Company as an additional Class A Mortgage. Bonds
thereafter issued under such additional mortgage would be Class A Bonds and
could provide the basis for the authentication and delivery of Mortgage
Securities under the 1993 Mortgage. (See Section 706.) When no Class A Bonds are
Outstanding under a Class A Mortgage except for Class A Bonds held by the 1993
Mortgage Trustee, then, at the request of the Company and subject to
satisfaction of certain conditions, the 1993 Mortgage Trustee will surrender
such Class A Bonds for cancellation and the related Class A Mortgage will be
satisfied and discharged, the lien of such Class A Mortgage on the Company's
property will cease to exist and the priority of the lien of the 1993 Mortgage
will be increased accordingly. (See Section 707.)
The 1993 Mortgage contains no restrictions on the issuance of Class A
Bonds in addition to Class A Bonds issued to the 1993 Mortgage Trustee as the
basis for the authentication and delivery of Mortgage Securities. Class A Bonds
may currently be issued under the 1939 Mortgage on the basis of property
additions, retirements of bonds previously issued under the 1939 Mortgage and
cash deposited with the 1939 Mortgage Trustee. (See "DESCRIPTION OF THE 1939
MORTGAGE -- Issuance of Additional Bonds Under the 1939 Mortgage".)
9
<PAGE>
Lien of the 1993 Mortgage. In the opinion of counsel for the Company (see
"EXPERTS") based on information obtained from public records and from the
Company, the 1993 Mortgage constitutes a mortgage lien on the property
specifically or generally described or referred to therein as subject to the
lien thereof, except such property as may have been disposed of or released from
the lien thereof in accordance with the terms thereof, subject to no liens prior
to the lien of the 1993 Mortgage other than the lien of the 1939 Mortgage (so
long as the 1939 Mortgage remains in effect), the liens of any other Class A
Mortgages and Permitted Liens; and the 1993 Mortgage effectively subjects to the
lien thereof property (other than excepted property) acquired by the Company
after the date of the execution and delivery thereof to the extent, and subject
to the qualifications, hereinafter described. So long as the 1939 Mortgage is in
effect, the New Bonds will have the benefit of the first mortgage lien of the
1939 Mortgage on such property, and the benefit of the prior lien of any
additional Class A Mortgage on any property subject thereto, to the extent of
the aggregate principal amount of Class A Bonds issued under the respective
Class A Mortgages and held by the 1993 Mortgage Trustee for the benefit of
holders of First Collateral Trust Bonds, including the New Bonds. The properties
subject to the lien of the 1993 Mortgage, whether currently owned or hereafter
acquired, are the Company's properties used or to be used in or in connection
with the Electric Utility Business (whether or not such is the sole use of such
properties). Properties relating to the Company's gas and steam businesses are
not subject to the lien of the 1993 Mortgage.
The lien of the 1993 Mortgage is subject to Permitted Liens which include,
among other things, tax liens and other governmental charges which are not
delinquent or which are being contested in good faith; certain workmen's,
materialmen's and other liens; certain judgment liens and attachments; certain
easements, leases, reservations or other rights of others (including
governmental entities) in, on, over, and/or across, and laws, regulations and
restrictions affecting, and defects, irregularities, exceptions and limitations
in title to, certain property of the Company; certain leasehold interests;
certain rights and interests of others which relate to common ownership or joint
use of property and liens on the interests of others in such property; certain
non-exclusive rights and interests retained by the Company with respect to
property used or to be used in or in connection with both the businesses in
which the Mortgaged Property is used and any other businesses; and certain other
liens and encumbrances. (See Granting Clauses and Section 101.)
There are excepted from the lien of the 1993 Mortgage, among other things,
cash and securities not paid or delivered to, deposited with or held by the 1993
Mortgage Trustee under the 1993 Mortgage; contracts, leases and other agreements
of all kinds, contract rights, bills, notes and other instruments, accounts
receivable, claims, governmental and other permits, allowances and franchises,
certain intellectual property rights and other intangibles; automobiles, other
vehicles, movable equipment and aircraft; all goods, stock in trade, wares and
merchandise held for sale or lease in the ordinary course of business;
materials, supplies and other personal property consumable in the operation of
the Mortgaged Property; fuel, including nuclear fuel, whether or not consumable
in the operation of the Mortgaged Property; all furniture and furnishings;
computers, machinery and telecommunication and other equipment used exclusively
for corporate administrative
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or clerical purposes; coal, ore, gas, oil and other minerals and timber, and all
rights and interests in any such minerals or timber, whether or not such
minerals or timber have been mined or extracted from the land; electric energy,
gas (natural or artificial), steam, water and other products generated,
produced, manufactured, purchased or otherwise acquired by the Company;
leasehold interests held by the Company as lessee; and all property that is
located outside of the State of Colorado. (See "Excepted Property".)
Without the consent of the Holders, the Company and the 1993 Mortgage
Trustee may enter into supplemental indentures in order to subject to the lien
of the 1993 Mortgage additional property, whether or not used or to be used in
or in connection with the Electric Utility Business (including property which
would otherwise be excepted from such lien). (See Section 1401.) Such property
would thereupon constitute Property Additions (so long as it would otherwise
qualify as Property Additions as described below) and be available as a basis
for the issuance of Mortgage Securities. (See "Issuance of Additional Mortgage
Securities".)
The 1993 Mortgage contains provisions subjecting to the lien thereof
after-acquired property used or to be used in or in connection with the Electric
Utility Business, subject to the prior lien of the 1939 Mortgage (for as long as
such prior lien is in effect). These provisions are limited in the case of
consolidation or merger (whether or not the Company is the surviving
corporation) or transfer of the Mortgaged Property as, or substantially as, an
entirety. In the event of consolidation or merger or the transfer of the
Mortgaged Property as or substantially as an entirety, the 1993 Mortgage will
not be required to be a lien upon any of the properties then owned or thereafter
acquired by the successor corporation except properties acquired from the
Company in or as a result of such transaction and improvements, extensions and
additions to such properties and renewals, replacements and substitutions of or
for any part or parts of such properties. (See Article Thirteen and
"Consolidation, Merger, etc.") In addition, after-acquired property may be
subject to liens existing or placed thereon at the time of acquisition thereof,
including, but not limited to, purchase money liens and the lien of any Class A
Mortgage.
The 1993 Mortgage provides that the 1993 Mortgage Trustee will have a
lien, prior to the lien on behalf of the holders of Mortgage Securities, upon
the Mortgaged Property for the payment of its reasonable compensation and
expenses and for indemnity against certain liabilities. (See Section 1107.)
Issuance of Additional Mortgage Securities: The aggregate principal amount
of Mortgage Securities which may be authenticated and delivered under the 1993
Mortgage is unlimited. (See Section 301.) Mortgage Securities of any series may
be issued from time to time on the basis of, and in an aggregate principal
amount not exceeding:
(a) the aggregate principal amount of Class A Bonds issued and delivered to the
1993 Mortgage Trustee;
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(b) 70% of the Cost or Fair Value to the Company (whichever is less) of
Property Additions (as described below) which do not constitute Funded
Property (generally, Property Additions which have been (i) made the basis
of the authentication and delivery of Mortgage Securities, the release of
Mortgaged Property or cash withdrawals; (ii) substituted for retired
property or (iii) used as the basis of a credit against, or otherwise in
satisfaction of, any sinking, improvement, maintenance, replacement or
similar fund, provided that Mortgage Securities of the series or tranche to
which such fund relates remain Outstanding) after certain deductions and
additions, primarily including adjustments to offset property retirements;
(c) the aggregate principal amount of Retired Securities (which consist of
Mortgage Securities no longer outstanding under the 1993 Mortgage which
have not been used for certain other purposes under the 1993 Mortgage and
which have not been paid, redeemed or otherwise retired by the application
of Funded Cash), but if Class A Bonds had been made the basis for the
authentication and delivery of such Retired Securities, only if such
Retired Securities became Retired Securities after the discharge of the
related Class A Mortgage; and
(d) an amount of cash deposited with the 1993 Mortgage Trustee.
(See Article Four.)
In general, the issuance of Mortgage Securities is subject to the Adjusted
Net Earnings of the Company for 12 consecutive months within the preceding 18
months being at least twice the Annual Interest Requirements on all Mortgage
Securities at the time outstanding, new Mortgage Securities then applied for,
all outstanding Class A Bonds other than Class A Bonds held by the 1993 Mortgage
Trustee under the 1993 Mortgage, and all other indebtedness (with certain
exceptions) secured by a lien prior to the lien of the 1993 Mortgage, except
that no such net earnings requirement need be met if the additional Mortgage
Securities to be issued are to have no Stated Interest Rate prior to Maturity.
Adjusted Net Earnings are calculated before, among other things, provisions for
income taxes; depreciation or amortization of property; interest and
amortization of debt discount and expense; any non-recurring charge to income or
retained earnings of whatever kind or nature (including without limitation the
recognition of expense due to the non-recoverability of investment or expense),
whether or not recorded as a non-recurring item in the Company's books of
account; and any refund of revenues previously collected or accrued by the
Company subject to possible refund. The calculation of Adjusted Net Earnings
also does not, or, in the case of losses or expense, is not required to, include
profits or losses from the sale or other disposition of property, or
non-recurring items of revenue, income or expense of any kind or nature. (See
Sections 103 and 401.)
The Company is not required to satisfy the net earnings requirement prior
to issuance of Mortgage Securities (i) as provided in (a) above if the Class A
Bonds issued and delivered to the 1993 Mortgage Trustee as the basis for such
issuance have been authenticated and delivered under the related Class A
Mortgage on the basis of retired
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Class A Bonds or (ii) as provided in (c) above. In general, the interest
requirement with respect to variable interest rate indebtedness, if any, is
determined with reference to the rate or rates in effect on the date immediately
preceding such determination or the rate to be in effect upon initial
authentication. With respect to Mortgage Securities of a series subject to a
Periodic Offering (such as a medium-term note program), the 1993 Mortgage
Trustee will be entitled to receive a certificate evidencing compliance with the
net earnings requirements only once, at or prior to the time of the first
authentication and delivery of the Mortgage Securities of such series. (See
Article Four.)
Property Additions generally include any property which is owned by the
Company and is subject to the lien of the 1993 Mortgage except (with certain
exceptions) goodwill, going concern value rights or intangible property, or any
property the cost of acquisition or construction of which is properly chargeable
to an operating expense account of the Company. (See Section 104.)
Unless otherwise provided in the applicable Prospectus Supplement or a
supplement thereto, until the 1939 Mortgage has been discharged, the Company
will issue the New Bonds on the basis of Class A Bonds issued under its 1939
Mortgage.
Release of Property: Unless an Event of Default has occurred and is
continuing, the Company may obtain the release from the lien of the 1993
Mortgage of any Funded Property, except for cash held by the 1993 Mortgage
Trustee, upon delivery to the 1993 Mortgage Trustee of cash equal in amount to
the amount, if any, that the Cost of the property to be released (or, if less,
the Fair Value to the Company of such property at the time it became Funded
Property) exceeds the aggregate of:
(a) the aggregate principal amount, subject to certain limitations, of
obligations delivered to the 1993 Mortgage Trustee which are secured by
purchase money liens upon the property to be released;
(b) the Cost or Fair Value to the Company (whichever is less) of certified
Property Additions not constituting Funded Property after certain
deductions and additions, primarily including adjustments to offset
property retirements (except that such adjustments need not be made if
such Property Additions were acquired or made within the 90-day period
preceding the release);
(c) an amount equal to 10/7ths of the principal amount of Mortgage Securities
the Company would be entitled to issue on the basis of Retired Securities
(with such entitlement to issue such principal amount of Mortgage
Securities being waived by operation of such release);
(d) an amount equal to 10/7ths of the principal amount of Outstanding Mortgage
Securities delivered to the 1993 Mortgage Trustee (with such Mortgage
Securities to be canceled by the 1993 Mortgage Trustee);
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(e) an amount of cash and/or the aggregate principal amount, subject to
certain limitations, of obligations secured by purchase money liens upon
the property to be released, which in either case is evidenced to the 1993
Mortgage Trustee by a certificate of the trustee or other holder of a lien
prior to the lien of the 1993 Mortgage to have been received by such
trustee or such other holder in accordance with the provisions of such
lien in consideration for the release of such property or any part thereof
from such lien; and
(f) any taxes and expenses incidental to any sale, exchange, dedication or
other disposition of the property to be released.
Property which is not Funded Property may generally be released from the
lien of the 1993 Mortgage without depositing any cash or property with the 1993
Mortgage Trustee as long as (a) the aggregate amount of Cost or Fair Value to
the Company (whichever is less) of all Property Additions which do not
constitute Funded Property (excluding the property to be released) after certain
deductions and additions, primarily including adjustments to offset property
retirements, is not less than zero or (b) the Cost or Fair Value (whichever is
less) of property to be released does not exceed the aggregate amount of the
Cost or Fair Value to the Company (whichever is less) of Property Additions
acquired or made within the 90-day period preceding the release.
The 1993 Mortgage provides simplified procedures for the release of
property which has been released from the lien of a Class A Mortgage, minor
properties and property taken by eminent domain, and provides for dispositions
of certain obsolete property and grants or surrender of certain rights without
any release or consent by the 1993 Mortgage Trustee.
If any property released from the lien of the 1993 Mortgage continues to
be owned by the Company after such release, the 1993 Mortgage will not become a
lien on any improvement, extension or addition to such property or renewals,
replacements or substitutions of or for any part or parts of such property.
(See Article Eight.)
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Withdrawal of Cash: Unless an Event of Default has occurred and is
continuing and subject to certain limitations, cash held by the 1993 Mortgage
Trustee may
(a) be withdrawn by the Company
(i) to the extent of the Cost or Fair Value to the Company (whichever is
less) of Property Additions not constituting Funded Property, after
certain deductions and additions, primarily including adjustments to
offset retirements (except that such adjustments need not be made if
such Property Additions were acquired or made within the 90-day period
preceding the release) or
(ii) in an amount equal to 10/7ths of the aggregate principal amount of
Mortgage Securities that the Company would be entitled to issue on the
basis of Retired Securities (with the entitlement to such issuance
being waived by operation of such withdrawal) or
(iii)in an amount equal to 10/7ths of the aggregate principal amount of
any Outstanding Mortgage Securities delivered to the 1993 Mortgage
Trustee, or
(b) upon the request of the Company, be applied to
(i) the purchase of Mortgage Securities (at prices not exceeding 10/7ths
of the principal amount thereof) or
(ii) the payment (or provision therefor for the satisfaction and discharge
of any Mortgage Securities) at Stated Maturity of any Mortgage
Securities or the redemption (or similar provision therefor) of any
Mortgage Securities which are redeemable (with any Mortgage Securities
received by the 1993 Mortgage Trustee pursuant to these provisions
being canceled by the 1993 Mortgage Trustee) (see Section 806);
provided, however, that cash deposited with the 1993 Mortgage Trustee as the
basis for the authentication and delivery of Mortgage Securities, as well as
cash representing a payment of principal of Class A Bonds, may only be withdrawn
in an amount equal to the aggregate principal amount of Mortgage Securities the
Company would be entitled to issue on any basis (with the entitlement to such
issuance being waived by operation of such withdrawal), or may, upon the request
of the Company, be applied to the purchase, redemption or payment of Mortgage
Securities at prices not exceeding, in the aggregate, the principal amount
thereof. (See Sections 405 and 702.)
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Consolidation, Merger, etc.: The Company may not consolidate with or merge
into any other corporation or convey, otherwise transfer or lease the Mortgaged
Property as or substantially as an entirety to any Person unless (a) such
transaction is on such terms as will fully preserve the lien and security of the
1993 Mortgage and the rights and powers of the 1993 Mortgage Trustee and the
Holders; (b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or other transfer,
or which leases, the Mortgaged Property as, or substantially as, an entirety is
a corporation organized and existing under the laws of the United States of
America or any State or Territory thereof or the District of Columbia, and such
corporation executes and delivers to the 1993 Mortgage Trustee a supplemental
indenture which contains an assumption by such corporation of the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on the Mortgage Securities and the performance of all of the covenants and
conditions of the Company under the 1993 Mortgage and which contains a grant,
conveyance, transfer and mortgage by such corporation confirming the lien of the
1993 Mortgage on the Mortgaged Property and subjecting to such lien all property
thereafter acquired by such corporation which shall constitute an improvement,
extension or addition to the Mortgaged Property or a renewal, replacement or
substitution of or for any part thereof, and, at the election of such
corporation, subjecting to the lien of the 1993 Mortgage such other property
then owned or thereafter acquired by such corporation as such corporation shall
specify; and (c) in the case of a lease, such lease is made expressly subject to
termination by the Company or by the 1993 Mortgage Trustee at any time during
the continuance of an Event of Default. (See Section 1301.)
Modification of 1993 Mortgage: Without the consent of any Holders, the
Company and the 1993 Mortgage Trustee may enter into one or more supplemental
indentures for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company in the
1993 Mortgage and in the Mortgage Securities; or
(b) to add one or more covenants of the Company or other provisions for the
benefit of all Holders or for the benefit of the Holders of, or to remain
in effect only so long as there shall be outstanding, Mortgage Securities
of one or more specified series, or one or more tranches thereof, or to
surrender any right or power conferred upon the Company by the 1993
Mortgage; or
(c) to correct or amplify the description of any property at any time subject
to the lien of the 1993 Mortgage; or to better assure, convey and confirm
to the 1993 Mortgage Trustee any property subject or required to be
subjected to the lien of the 1993 Mortgage; or to subject to the lien of
the 1993 Mortgage additional property (including property of others), to
specify any additional Permitted Liens with respect to such additional
property and to modify the provisions in the 1993 Mortgage for dispositions
of certain types of property without release in order to specify any
additional items with respect to such additional property; or
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(d) to change or eliminate any provision of the 1993 Mortgage or to add any new
provision to the 1993 Mortgage, provided that if such change, elimination
or addition adversely affects the interests of the Holders of the Mortgage
Securities of any series or tranche in any material respect, such change,
elimination or addition will become effective with respect to such series
or tranche only when no Mortgage Security of such series or tranche remains
outstanding under the 1993 Mortgage; or
(e) to establish the form or terms of the Mortgage Securities of any series or
tranche as permitted by the 1993 Mortgage; or
(f) to provide for the authentication and delivery of bearer securities and
coupons appertaining thereto representing interest, if any, thereon and for
the procedures for the registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation of the vote or consent
of, the holders thereof, and for any and all other matters incidental
thereto; or
(g) to evidence and provide for the acceptance of appointment by a successor
trustee or by a co-trustee or separate trustee; or
(h) to provide for the procedures required to permit the Company to use a
non-certificated system of registration for all, or any series or tranche
of, the Mortgage Securities; or
(i) to change any place or places where (i) the principal of and premium, if
any, and interest, if any, on all or any series of Mortgage Securities, or
any tranche thereof, will be payable, (ii) all or any series of Mortgage
Securities, or any tranche thereof, may be surrendered for registration of
transfer, (iii) all or any series of Mortgage Securities, or any tranche
thereof, may be surrendered for exchange and (iv) notices and demands to or
upon the Company in respect of all or any series of Mortgage Securities, or
any tranche thereof, and the 1993 Mortgage may be served; or
(j) to cure any ambiguity, to correct or supplement any provision therein which
may be defective or inconsistent with any other provision therein, or to
make any other changes to the provisions thereof or to add other provisions
with respect to matters and questions arising under the 1993 Mortgage, so
long as such other changes or additions do not adversely affect the
interests of the Holders of Mortgage Securities of any series or tranche in
any material respect.
(See Section 1401.)
Without limiting the generality of the foregoing, if the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), is amended after the date
of the Original 1993 Mortgage in such a way as to require changes to the 1993
Mortgage or the incorporation therein of additional provisions or so as to
permit changes to, or the elimination of,
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provisions which, at the date of the Original 1993 Mortgage or at any time
thereafter, were required by the Trust Indenture Act to be contained in the 1993
Mortgage, the 1993 Mortgage will be deemed to have been amended so as to conform
to such amendment or to effect such changes or elimination, and the Company and
the 1993 Mortgage Trustee may, without the consent of any Holders, enter into
one or more supplemental indentures to evidence or effect such amendment. (See
Section 1401.)
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the Mortgage Securities of all series
then Outstanding, considered as one class, is required for the purpose of adding
any provisions to, or changing in any manner, or eliminating any of the
provisions of, the 1993 Mortgage pursuant to one or more supplemental
indentures; provided, however, that if less than all of the series of Mortgage
Securities Outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in aggregate
principal amount of Outstanding Mortgage Securities of all series so directly
affected, considered as one class, will be required; and provided, further, that
if the Mortgage Securities of any series have been issued in more than one
tranche and if the proposed supplemental indenture directly affects the rights
of the Holders of one or more, but less than all, of such tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Mortgage Securities of all tranches so directly affected, considered
as one class, will be required; and provided, further, that no such amendment or
modification may (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Mortgage Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon), or change the method of calculating such rate,
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the principal of any Discount Security that would be due and payable upon a
declaration of acceleration of Maturity, or change the coin or currency (or
other property) in which any Mortgage Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity of any Mortgage Security (or,
in the case of redemption, on or after the redemption date) without, in any such
case, the consent of the Holder of such Mortgage Security; (b) permit the
creation of any lien not otherwise permitted by the 1993 Mortgage ranking prior
to the lien of the 1993 Mortgage with respect to all or substantially all of the
Mortgaged Property or terminate the lien of the 1993 Mortgage on all or
substantially all of the Mortgaged Property, or deprive the Holders of the
benefit of the lien of the 1993 Mortgage, without, in any such case, the consent
of the Holders of all Mortgage Securities then Outstanding; (c) reduce the
percentage in principal amount of the Outstanding Mortgage Securities of any
series, or any tranche thereof, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of the 1993 Mortgage or
of any default thereunder and its consequences, or reduce the requirements for
quorum or voting, without, in any such case, the consent of the Holder of each
Outstanding Mortgage Security of such series or tranche; or (d) modify certain
of the provisions of the 1993 Mortgage relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with respect to the
Mortgage Securities of any series, or any tranche
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<PAGE>
thereof, without the consent of the Holder of each Outstanding Mortgage Security
of such series or tranche. A supplemental indenture which changes or eliminates
any covenant or other provision of the 1993 Mortgage which has expressly been
included solely for the benefit of the Holders of, or which is to remain in
effect only so long as there shall be Outstanding Mortgage Securities of one or
more specified series, or one or more tranches thereof, or modifies the rights
of the Holders of Mortgage Securities of such series or tranches with respect to
such covenant or other provision, will be deemed not to affect the rights under
the 1993 Mortgage of the Holders of the Mortgage Securities of any other series
or tranche. (See Section 1402.)
Voting of Class A Bonds: The 1993 Mortgage provides that the 1993 Mortgage
Trustee will, as holder of Class A Bonds issued under the 1939 Mortgage as the
basis for the issuance of Mortgage Securities, attend such meetings of
bondholders under the related Class A Mortgage, or deliver its proxy in
connection therewith, as relate to matters with respect to which it is entitled
to vote or consent. The 1993 Mortgage provides that, so long as no Event of
Default as defined in the 1993 Mortgage has occurred and is continuing, the 1993
Mortgage Trustee will, as holder of such Class A Bonds (a) vote in favor of the
amendments and modifications to the 1939 Mortgage described under "DESCRIPTION
OF THE 1939 MORTGAGE -- Voting of Class A Bonds Issued Under the 1939 Mortgage",
and (b) with respect to any amendments or modifications to any Class A Mortgage
other than those amendments or modifications referred to in (a), vote all Class
A Bonds Outstanding under such Class A Mortgage then held by it, or consent with
respect thereto, proportionately with the vote or consent of holders of all
other Class A Bonds Outstanding under such Class A Mortgage the holders of which
are eligible to vote or consent, as evidenced by a certificate delivered by the
trustee under such Class A Mortgage; provided, however, that the 1993 Mortgage
Trustee will not vote in favor of, or consent to, any amendment or modification
of a Class A Mortgage which, if it were an amendment or modification of the 1993
Mortgage, would require the consent of Holders of Mortgage Securities as
described under "Modification of the 1993 Mortgage", without the prior consent
of Holders of Mortgage Securities which would be required for such an amendment
or modification of the 1993 Mortgage.
(See Section 705.)
Waiver: The Holders of at least a majority in aggregate principal amount
of all Mortgage Securities may waive the Company's obligations to comply with
certain covenants, including the covenants to maintain its corporate existence
and properties, pay taxes and discharge liens, maintain certain insurance and
make such recordings and filings as are necessary to protect the security of the
Holders and the rights of the 1993 Mortgage Trustee and the covenant described
above with respect to merger, consolidation or the transfer or lease of the
Mortgaged Property as, or substantially as, an entirety, provided that such
waiver occurs before the time such compliance is required. The Holders of at
least a majority of the aggregate principal amount of Outstanding Mortgage
Securities of all affected series or tranches, considered as one class, may
waive, before the time for such compliance, compliance with any covenant
specified with respect to Mortgage Securities of such series or tranches. (See
Section 609.)
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Events of Default: Each of the following events constitutes an Event of
Default under the 1993 Mortgage:
(a) failure to pay interest on any Mortgage Security within 60 days after the
same becomes due;
(b) failure to pay principal of or premium, if any, on any Mortgage Security
within 3 business days after the Maturity thereof;
(c) failure to perform or breach of any covenant or warranty of the Company
contained in the 1993 Mortgage (other than a covenant or warranty a default
in the performance of which or breach of which is dealt with elsewhere
under this paragraph) for a period of 90 days after there has been given to
the Company by the 1993 Mortgage Trustee, or to the Company and the 1993
Mortgage Trustee by the Holders of at least 33% in principal amount of
Outstanding Mortgage Securities, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default", unless the 1993 Mortgage Trustee, or the 1993 Mortgage
Trustee and the Holders of a principal amount of Mortgage Securities not
less than the principal amount of Mortgage Securities the Holders of which
gave such notice, as the case may be, agree in writing to an extension of
such period prior to its expiration; provided, however, that the 1993
Mortgage Trustee, or the 1993 Mortgage Trustee and such Holders, as the
case may be, will be deemed to have agreed to an extension of such period
if corrective action has been initiated by the Company within such period
and is being diligently pursued;
(d) certain events relating to reorganization, bankruptcy and insolvency of the
Company or appointment of a receiver or trustee for its property; and
(e) the occurrence of a matured event of default under any Class A Mortgage
(other than any such matured event of default which is of similar kind or
character to the Event of Default described in (c) above and which has not
resulted in the acceleration of the Class A Bonds Outstanding under such
Class A Mortgage); provided that the waiver or cure of any such event of
default and the rescission and annulment of the consequences thereof shall
constitute a waiver of the corresponding Event of Default under the 1993
Mortgage and a rescission and annulment of the consequences thereof. (See
Section 1001.)
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Remedies: If an Event of Default occurs and is continuing, then the 1993
Mortgage Trustee or the Holders of not less than 33% in principal amount of
Mortgage Securities then Outstanding may declare the principal amount (or if the
Mortgage Securities are Discount Securities, such portion of the principal
amount of such Discount Securities as may be provided for pursuant to the terms
of the 1993 Mortgage) of all of the Mortgage Securities then Outstanding,
together with premium, if any, and accrued interest, if any, thereon to be
immediately due and payable. At any time after such declaration of acceleration
of the Mortgage Securities then Outstanding, but before the sale of any of the
Mortgaged Property and before a judgment or decree for payment of money shall
have been obtained by the 1993 Mortgage Trustee as provided in the 1993
Mortgage, the Event or Events of Default giving rise to such declaration of
acceleration will, without further act, be deemed to have been waived, and such
declaration and its consequences will, without further act, be deemed to have
been rescinded and annulled, if
(a) the Company has paid or deposited with the 1993 Mortgage Trustee a
sum sufficient to pay:
(i) all overdue interest, if any, on all Mortgage Securities then
Outstanding;
(ii) the principal of and premium, if any, on any Mortgage
Securities then Outstanding which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Mortgage Securities; and
(iii) all amounts due to the 1993 Mortgage Trustee as compensation
and reimbursement as provided in the 1993 Mortgage; and
(b) any other Event or Events of Default, other than the non-payment
of the principal of Mortgage Securities which shall have become due solely
by such declaration of acceleration, shall have been cured or waived as
provided in the 1993 Mortgage. (See Sections 1002 and 1017.)
The 1993 Mortgage provides that, under certain circumstances and to the
extent permitted by law, if an Event of Default occurs and is continuing, the
1993 Mortgage Trustee has the power to take possession of, and to hold, operate
and manage, the Mortgaged Property or, with or without entry, sell the Mortgaged
Property. If the Mortgaged Property is sold, whether by the 1993 Mortgage
Trustee or pursuant to judicial proceedings, the principal of the Outstanding
Mortgage Securities, if not previously due, will become immediately due,
together with premium, if any, and any accrued interest. (See Sections 1003,
1004 and 1005.)
If an Event of Default occurs and is continuing, the Holders of a majority
in principal amount of the Mortgage Securities then Outstanding will have the
right to direct the time, method and place of conducting any proceedings for any
remedy available to the 1993
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Mortgage Trustee or exercising any trust or power conferred on the 1993 Mortgage
Trustee, provided that (a) such direction does not conflict with any rule of law
or with the 1993 Mortgage, and could not involve the 1993 Mortgage Trustee in
personal liability in circumstances where indemnity would not, in the 1993
Mortgage Trustee's sole discretion, be adequate and (b) the 1993 Mortgage
Trustee may take any other action deemed proper by the 1993 Mortgage Trustee
which is not inconsistent with such direction. (See Section 1016.)
The 1993 Mortgage provides that no Holder of any Mortgage Security will
have any right to institute any proceeding, judicial or otherwise, with respect
to the 1993 Mortgage or for the appointment of a receiver or for any other
remedy thereunder unless (a) such Holder has previously given to the 1993
Mortgage Trustee written notice of a continuing Event of Default; (b) the
Holders of not less than a majority in aggregate principal amount of the
Mortgage Securities then Outstanding have made written request to the 1993
Mortgage Trustee to institute proceedings in respect of such Event of Default
and have offered the 1993 Mortgage Trustee reasonable indemnity against costs
and liabilities to be incurred in complying with such request; and (c) for 60
days after receipt of such notice, the 1993 Mortgage Trustee has failed to
institute any such proceeding and no direction inconsistent with such request
has been given to the 1993 Mortgage Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of Mortgage Securities then
Outstanding. Furthermore, no Holder will be entitled to institute any such
action if and to the extent that such action would disturb or prejudice the
rights of other Holders. (See Section 1011.) Notwithstanding that the right of a
Holder to institute a proceeding with respect to the 1993 Mortgage is subject to
certain conditions precedent, each Holder of a Mortgage Security has the right,
which is absolute and unconditional, to receive payment of the principal of and
premium, if any, and interest, if any, on such Mortgage Security when due and to
institute suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of such Holder. (See Section 1012.) The 1993
Mortgage provides that the 1993 Mortgage Trustee give the Holders notice of any
default under the 1993 Mortgage to the extent required by the Trust Indenture
Act, unless such default shall have been cured or waived, except that no such
notice to Holders of a default of the character described in clause (c) under
"Events of Default" may be given until at least 75 days after the occurrence
thereof. For purposes of the preceding sentence, the term "default" means any
event which is, or after notice or lapse of time, or both, would become, an
Event of Default. (See Section 1102.) The Trust Indenture Act currently permits
the 1993 Mortgage Trustee to withhold notices of default (except for certain
payment defaults) if the 1993 Mortgage Trustee in good faith determines the
withholding of such notice to be in the interests of the Holders.
As a condition precedent to certain actions by the 1993 Mortgage Trustee
in the enforcement of the lien of the 1993 Mortgage and institution of action on
the Mortgage Securities, the 1993 Mortgage Trustee may require adequate
indemnity against costs, expenses and liabilities to be incurred in connection
therewith. (See Sections 1011 and 1101.)
22
<PAGE>
In addition to every other right and remedy provided in the 1993 Mortgage,
the 1993 Mortgage Trustee may exercise any right or remedy available to the 1993
Mortgage Trustee in its capacity as owner and holder of Class A Bonds which
arises as a result of a default or matured event of default under any Class A
Mortgage, whether or not an Event of Default under the 1993 Mortgage has
occurred and is continuing. (See Section 1020.)
Defeasance: Any Mortgage Security or Securities, or any portion of the
principal amount thereof, will be deemed to have been paid for purposes of the
1993 Mortgage, and, at the Company's election, the entire indebtedness of the
Company in respect thereof will be deemed to have been satisfied and discharged,
if there has been irrevocably deposited with the 1993 Mortgage Trustee or any
Paying Agent (other than the Company), in trust: (a) money (including Funded
Cash not otherwise applied pursuant to the 1993 Mortgage) in an amount which
will be sufficient; or (b) Eligible Obligations (as described below) which do
not contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof, will provide monies which,
together with the money, if any, deposited with or held by the 1993 Mortgage
Trustee or such Paying Agent, will be sufficient; or (c) a combination of (a)
and (b) which will be sufficient to pay when due the principal of and premium,
if any, and interest, if any, due and to become due on such Mortgage Security or
Securities or portions thereof. (See Section 901.) For this purpose, Eligible
Obligations include direct obligations of, or obligations unconditionally
guaranteed by, the United States of America entitled to the benefit of the full
faith and credit thereof, and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect thereof.
It is possible that for Federal income tax purposes any deposit
contemplated in the preceding paragraph could be treated as a taxable exchange
of the related Mortgage Securities for an issue of obligations of the trust or a
direct interest in the cash and securities held in the trust. In that case,
Holders of such Mortgage Securities would recognize gain or loss as if the trust
obligations or the cash or securities deposited, as the case may be, had
actually been received by them in exchange for their Mortgage Securities. Such
gain or loss, generally, would be capital in nature to Holders for whom the
Mortgage Securities are held as capital assets and any deductions for losses
would be subject to certain limitations. Such Holders thereafter would be
required to include in income a share of the income, gain or loss of the trust
or the income from the securities held in trust, as the case may be. The amount
so required to be included in income could be different from the amount that
would be includible in the absence of such deposit. Prospective investors are
urged to consult their own tax advisors as to the specific consequences to them
of such deposit.
23
<PAGE>
Resignation of the 1993 Mortgage Trustee: The 1993 Mortgage Trustee may
resign at any time by giving written notice thereof to the Company or may be
removed at any time by Act of the Holders of a majority in principal amount of
Mortgage Securities then Outstanding delivered to the 1993 Mortgage Trustee and
the Company. No resignation or removal of the 1993 Mortgage Trustee and no
appointment of a successor trustee will become effective until the acceptance of
appointment by a successor trustee in accordance with the requirements of the
1993 Mortgage. So long as no Event of Default or event which, after notice or
lapse of time, or both, would become an Event of Default has occurred and is
continuing, if the Company has delivered to the 1993 Mortgage Trustee a
resolution of its Board of Directors appointing a successor trustee and such
successor has accepted such appointment in accordance with the terms of the 1993
Mortgage, the 1993 Mortgage Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in accordance with
the 1993 Mortgage. (See Section 1110.)
Evidence to be Furnished to the 1993 Mortgage Trustee: Compliance with
1993 Mortgage provisions is evidenced by written statements of Company officers
or persons selected or paid by the Company. In certain cases, opinions of
counsel and certification of an engineer, accountant, appraiser or other expert
(who in some cases must be independent) must be furnished. In addition, the 1993
Mortgage requires that the Company give the 1993 Mortgage Trustee, not less
often than annually, a brief statement as to the Company's compliance with the
conditions and covenants under the 1993 Mortgage.
Concerning the 1993 Mortgage Trustee: The Company conducts banking
transactions with affiliates of the 1993 Mortgage Trustee in the normal course
of the Company's business and uses the 1993 Mortgage Trustee or its affiliates
as trustee for various debt issues.
DESCRIPTION OF THE 1939 MORTGAGE
General: The summaries under this heading do not purport to be complete
and are subject to the detailed provisions of the 1939 Mortgage, a copy of which
is filed as an exhibit to the Registration Statement of which this Prospectus is
a part. Capitalized terms used under this heading which are not otherwise
defined in this Prospectus shall have the meanings ascribed thereto in the 1939
Mortgage. Wherever particular provisions or terms defined therein are referred
to, such provisions or definitions are incorporated by reference as part of the
statements made herein and such statements are qualified in their entirety by
such reference. References to article and section numbers herein, unless
otherwise indicated, are references to articles and section numbers of the
Original 1939 Mortgage.
24
<PAGE>
Security. Class A Bonds issued under the 1939 Mortgage will rank pari
passu, except as to any sinking fund or similar fund provided for a particular
series, with all bonds at any time outstanding under the 1939 Mortgage. In the
opinion of counsel for the Company (see "EXPERTS"), the 1939 Mortgage
constitutes a first mortgage lien on the property specifically or generally
described therein as subject to the lien thereof, except such property as may
have been disposed of or released from the lien thereof in accordance with the
terms thereof, subject to no liens prior to the lien of the 1939 Mortgage other
than Permitted Encumbrances, as defined therein; and the 1939 Mortgage by its
terms effectively subjects to the lien thereof all property (except property of
the kinds specifically excepted from the lien thereof) acquired by the Company
after the date of the execution and delivery thereof, subject to Permitted
Encumbrances, to any lien thereon existing, and to any liens for unpaid portions
of the purchase money placed thereon, at the time of such acquisition, and also
subject to certain limitations in the case of consolidation, merger or sale of
substantially all the mortgaged property. The principal properties subject to
the lien of the 1939 Mortgage are the electric and gas properties owned by the
Company and securities of certain subsidiaries. (See Granting and Habendum
Clauses, Sections 2 and 3 of Article I, and Section 3 of Article XI of the 1939
Mortgage.)
The 1939 Mortgage provides that the 1939 Mortgage Trustee shall have a
lien prior to the bonds on the mortgaged property for payment of its
compensation, expenses and disbursements and for indemnity against certain
liabilities. (See Section 10 of Article XII of the 1939 Mortgage.)
Issuance of Additional Bonds Under the 1939 Mortgage. Additional bonds may
be issued under the 1939 Mortgage in a principal amount equal to (a) 60% of net
property additions (as defined in the 1939 Mortgage) acquired or constructed
within five years of certification to the 1939 Mortgage Trustee, (b) the
principal amount of certain retired bonds or prior lien bonds or (c) deposited
cash (in certain cases 60% thereof).
See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
No bonds may be issued under the 1939 Mortgage, as provided in clauses (a)
and (c) above, unless the net earnings of the Company (as defined in Section 5
of Article I of the 1939 Mortgage and as discussed below) are at least 2-1/2
times the annual interest on all bonds issued and outstanding under the 1939
Mortgage, including the bonds applied for (but excluding any bonds to be paid,
retired or redeemed with the proceeds of the bonds applied for), and
indebtedness secured by prior liens. Such net earnings test generally need not
be satisfied prior to the issuance of bonds as provided in clause (b) above
unless (x) the new bonds are issued more than two years prior to the stated
maturity of the retired bonds and the new bonds bear a greater rate of interest
than the retired bonds or (y) the new bonds are issued in respect of retired
bonds, the interest charges on which have been excluded from any net earnings
certificate filed with the 1939 Mortgage Trustee since the retirement of such
bonds. (See Article III of the 1939 Mortgage.) See "Voting of Class A Bonds
Issued Under the 1939 Mortgage".
25
<PAGE>
Cash deposited under clause (c) above may be withdrawn by the Company in
an amount equal to the principal amounts of bonds issuable pursuant to clauses
(a) and (b) above (in certain cases 166-2/3% thereof) without regard to earnings
or may be applied to the purchase or redemption of bonds of one or more series
selected by the Company. (See Sections 8, 9 and 10 of Article III of the 1939
Mortgage.) See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
Net earnings are computed before provision for depreciation and
amortization of property, income and profits taxes (as defined in the 1939
Mortgage), interest on any indebtedness and amortization of debt discount and
expense and do not take into account any profits or losses from the sale or
disposal of capital assets or securities. (See Section 5 of Article I of the
1939 Mortgage.)
Property additions under the 1939 Mortgage consist of property used or
useful in the electric, gas or steam business (with certain exceptions) acquired
or constructed by the Company within five years next preceding the certification
thereof to the 1939 Mortgage Trustee. (See Section 4 of Article I of the 1939
Mortgage.) See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
The approximate amount of net property additions as of March 31, 1996, and
the amount of retired bonds as of September 30, 1996, available for use as the
basis for the issuance of Class A Bonds under the 1939 Mortgage, subject to the
net earnings restrictions discussed above, were $373,263,821 and $968,180,000,
respectively. The Company will determine, at the time of each issuance of Class
A Bonds under the 1939 Mortgage which are to be the basis for the issuance of
New Bonds, whether such Class A Bonds will be issued upon the basis of property
additions or retired bonds. As of September 30, 1996, $1,144,917,000 in
aggregate principal amount of bonds were outstanding under the 1939 Mortgage,
$472,167,000 aggregate principal amount of which was held by the 1993 Mortgage
Trustee as security for outstanding Mortgage Securities under the 1993 Mortgage.
The 1939 Mortgage contains restrictions on (a) the acquisition of property
securing prior lien indebtedness in excess of 60% of the fair value of the
property and (b) the issuance of bonds, withdrawal of cash or release of
property on the basis of property subject to prior lien. Prior lien indebtedness
secured by property theretofore acquired may not be increased unless the
evidence thereof is pledged with the 1939 Mortgage Trustee. (See Section 4 of
Article I and Sections 15, 17 and 19 of Article IV of the 1939 Mortgage.) See
"Voting of Class A Bonds Issued Under the 1939 Mortgage".
26
<PAGE>
Maintenance and Replacement Fund for Bonds Outstanding Under the 1939
Mortgage: Although there will be no provision for a maintenance and replacement
fund with respect to Class A Bonds issued under the 1939 Mortgage as the basis
for the issuance of New Bonds, the Company has covenanted, with respect to
various series of outstanding bonds issued under the 1939 Mortgage maturing
through July 1, 1998, that, so long as any bond of such series remains
outstanding, the Company will, for each calendar year (herein called the
"accounting period"), pay to the 1939 Mortgage Trustee, as a Maintenance and
Replacement fund, an amount in cash not less than the sum of 15% of the gross
electric operating revenues and 10% of the gross gas and steam operating
revenues (as defined in the 1939 Mortgage, which, among other things, provides
for the deduction therefrom of the cost of purchased electric current, gas and
steam) derived from the mortgaged property during the accounting period, less,
however, the following optional credits: (a) expenditures during the accounting
period for repairs and maintenance of the mortgaged property; (b) the cost of
property additions during the accounting period deemed to renew or replace
retired or abandoned property, subject to adjustment for any outstanding prior
lien bonds secured by such property additions; (c) the principal amount of all
bonds and/or 166-2/3% of the principal amount of all prior lien bonds, retired
or redeemed and for which no bonds have been issued, credit taken or cash
withdrawn under the 1939 Mortgage; and (d) net property additions to the extent
of 100% thereof. Cash so deposited may be applied to the purchase or redemption
of such bonds as the Company may designate, which by their terms are redeemable
prior to maturity (including any of the Class A Bonds issued under the 1939
Mortgage that are so redeemable and that were issued as the basis for the
issuance of Bonds) at a price not exceeding the then current redemption price as
set forth in the relevant supplemental indenture and the accrued interest on
such bonds, or may be withdrawn upon the basis of certain property additions or
certain retired bonds or prior lien bonds. (See Section 8 of Article IV of the
1939 Mortgage and Article Two of certain supplemental indentures.) See "Voting
of Class A Bonds Issued Under the 1939 Mortgage".
The series of outstanding bonds which contain maintenance and replacement
fund covenants mature through July 1, 1998, but may be redeemed prior to their
stated maturity. The Company does not anticipate issuing any additional series
of bonds under the 1939 Mortgage which will contain such covenants. The Company
will no longer be bound by such covenants after all the bonds of such series
have been retired.
27
<PAGE>
Modification of the 1939 Mortgage: The 1939 Mortgage and the rights of
bondholders thereunder may be modified with the consent of the Company, and of
the 1939 Mortgage Trustee if deemed affected, and the consent of the holders of
not less than 75% in principal amount of the bonds then outstanding, or of not
less than 75% in principal amount of the outstanding bonds of any one or more
series which may be affected by any such modification; except that the
bondholders, without the consent of the holder of each bond affected, have no
power to (a) extend the time of payment of the principal of or interest on any
bonds; (b) reduce the principal amount thereof or the rate of interest thereon,
or otherwise modify the terms of payment of principal or interest; (c) permit
the creation of any lien ranking prior to or on a parity with the lien of the
1939 Mortgage with respect to any of the mortgaged property; (d) deprive any
nonassenting bondholder of a lien upon the mortgaged property for the security
of his/her bonds; or (e) reduce the percentage of bondholders authorized to take
such action. (See Article XIV of the 1939 Mortgage.) The Company has reserved
the right to amend the 1939 Mortgage without any consent or other action by
holders of any series of bonds created after October 31, 1975 (including Class A
Bonds issued under the 1939 Mortgage as the basis for the issuance of New Bonds)
to reduce the required consent of bondholders described above from 75% to 60%.
(See Article Five of the Supplemental Indenture dated as of November 1, 1977.)
Voting of Class A Bonds Issued Under the 1939 Mortgage: The 1993 Mortgage
provides that, so long as no Event of Default as defined in the 1993 Mortgage
has occurred and is continuing thereunder, the 1993 Mortgage Trustee will, as
holder of Class A Bonds issued under the 1939 Mortgage and delivered as the
basis for the issuance of Bonds,
(a) vote or consent in favor of amendments or modifications to the
1939 Mortgage of substantially the same tenor and effect as follows:
(i) to expand the definition of property additions to
eliminate geographical restrictions to certain states and allow the
inclusion of properties located anywhere in the United States,
Canada and Mexico, or their coastal waters; to include space
satellites and stations, solar power satellites and other analogous
facilities; to include nuclear fuel and other analogous devices or
substances and to establish other provisions as to such fuel; to
include properties located on leased real property, subject to
certain limitations; to include goodwill when acquired with a public
utility system, subject to certain limitations; and to delete the
requirement that property additions have been acquired or
constructed within five years;
(ii) to remove the requirement that certificates delivered to
the 1939 Mortgage Trustee be verified;
(iii) to liberalize the requirements for publication of
notices of redemption and other notices;
28
<PAGE>
(iv) to eliminate the maintenance and replacement fund or, in
the alternative,
(A) to change the amount of cash deliverable to the 1939
Mortgage Trustee to the lower of (x) 10% of the combined
electric, gas and steam gross operating revenues of the
Company or (y) 2% of the cost of the depreciable property of
the Company, less the accumulated provision for depreciation;
and
(B) to change the definition of gross operating revenues
to deduct the cost of fuel used to provide electric, gas and
steam services;
(v) to change the opinion of counsel required to be delivered
upon the certification of property additions to delete the
requirement that the Company have all necessary permission from
governmental authorities to use and operate such property additions;
(vi) to specifically allow the inclusion of earnings collected
subject to refund in net earnings for purposes of the interest
coverage requirement for the issuance of bonds;
(vii) to specifically permit the debt component, in addition
to the equity component, of the allowance for funds used during
construction to be included in net earnings for purposes of the
interest coverage requirement for the issuance of bonds;
(viii)(A) to reduce the interest coverage requirement for the
issuance of bonds to 2 times from 2-1/2 times annual
interest charges on outstanding bonds, including bonds
applied for, and prior lien indebtedness; or, in the
alternative,
(B) to change such coverage requirement to a requirement
that net earnings be at least equal to either (x) 2 (or
any higher amount) times annual interest charges on, or
(y) 15% (or any higher percentage) of the aggregate
principal amount of, outstanding bonds, including the
bonds applied for, and prior lien indebtedness;
(ix) to remove the restrictions on acquiring property subject
to a prior lien (retaining, however, the restrictions on certifying
such property as property additions);
(x) to raise the minimum dollar amount of fire and other
losses that must be payable to the 1939 Mortgage Trustee from
$50,000 to 3% (or any higher percentage) of the principal amount of
outstanding bonds; and to
29
<PAGE>
specifically permit the Company to carry insurance policies with
deductible provisions equal to 3% (or any higher percentage) of
the principal amount of outstanding bonds or any higher
deductible amount usually contained in the policies of other
companies owning and operating similar properties;
(xi) to delete the covenant of the Company to "observe
and conform to all valid requirements of any governmental authority
relative to any of the mortgaged property";
(xii) to delete the requirement that the 1939 Mortgage Trustee
be located in New York, New York and that the Company maintain an
office in New York, New York, to make payments on bonds and register
transfers thereof;
(xiii) to modify the special release provision of the 1939
Mortgage to increase the amount of the aggregate value of property
which may be released from the lien of the 1939 Mortgage within any
period of 12 consecutive calendar months without compliance with all
the conditions of the general release provision from $25,000 to (A)
the greater of $25,000 or 1% of the aggregate principal amount of
outstanding bonds or (B) the greater of $10,000,000 or 3% of the
aggregate principal amount of outstanding bonds (or any lower amount
or percentage);
(xiv) to permit bonds to be issued under the 1939 Mortgage in
a principal amount equal to 70% of net property additions instead of
60% and to make correlative changes in provisions relating to, among
other things, the release of property from the lien of the 1939
Mortgage, the withdrawal of cash held by the 1939 Mortgage Trustee,
the acquisition and use under the 1939 Mortgage of property securing
prior lien indebtedness, and the use of retired prior lien bonds;
and
(xv) to modify the definition of all defaults under the 1939
Mortgage to be substantially identical to the Events of Default
under the 1993 Mortgage; and
(b) with respect to any amendments or modifications to the 1939
Mortgage other than those referred to in (a) above, vote all Class A Bonds
Outstanding under the 1939 Mortgage then held by it, or consent with
respect thereto, in the manner as described under "DESCRIPTION OF THE NEW
BONDS -- Voting of Class A Bonds". (See Section 705 of the 1993 Mortgage.)
The Company has reserved the right to make any or all of the modifications
to the 1939 Mortgage described in (a)(i) through (a)(xiii)(A) above without
consent or other action of the holders of certain outstanding series of bonds
previously issued under the 1939 Mortgage (not including the Class A Bonds
issued thereunder as the basis of the issuance of
30
<PAGE>
Mortgage Securities) aggregating $433,500,000 in principal amount. (See Article
Three of the Supplemental Indenture dated as of March 1, 1980 and Article Four
of the Supplemental Indentures dated as of July 1, 1990, December 1, 1990, and
March 1, 1992, respectively.)
The indentures under which certain pollution control revenue bonds of
Morgan County, Colorado and Adams County, Colorado were issued provide that the
trustees thereunder, as holders of bonds issued under the 1939 Mortgage having a
principal amount of $156,750,000 in the aggregate, shall vote in favor of, or
consent with respect to, any or all of the possible modifications described in
(a)(i) through (a)(xiii)(A) above.
Default Under the 1939 Mortgage: An event of default under the 1939
Mortgage includes a failure to pay interest on any bond, or to pay a sinking
fund installment, for 60 days after such payment becomes due, a failure to pay
the principal of or premium, if any, on any bond when the same becomes due, a
default with respect to the payment of principal of or interest on any prior
lien bonds, a failure to perform any other covenant in the 1939 Mortgage for 90
days after notice given to the Company by the 1939 Mortgage Trustee or by the
holders of 10% in principal amount of outstanding bonds, certain events in
bankruptcy, and an Event of Default under the 1993 Mortgage and/or certain
matured events of default under any other Class A Mortgage. (See Section 1 of
Article VIII of the 1939 Mortgage and Article Five of the Supplemental Indenture
dated as of November 1, 1993 creating the First Mortgage Bonds, Collateral
Series A.) The 1939 Mortgage Trustee may withhold notice of default (except
default in the payment of principal of or premium, if any, or interest on the
bonds or in the payment of a sinking fund installment) if it determines such
withholding to be in the interests of the bondholders. (See Section 2 of Article
VIII of the 1939 Mortgage.) The Company is required to report annually to the
1939 Mortgage Trustee as to compliance with the covenants contained in the 1939
Mortgage. (See Section 24 of Article IV of the 1939 Mortgage.)
Upon the occurrence of a default under the 1939 Mortgage, the 1939
Mortgage Trustee or the holders of 25% in principal amount of outstanding bonds
may declare the principal of and interest accrued on all outstanding bonds due
and payable immediately; provided, however, that if such default has been cured,
(a) the holders of a majority in principal amount of outstanding bonds may annul
such declaration or (b) if, in making such declaration, the 1939 Mortgage
Trustee shall have acted without a direction from the holders of a majority in
principal amount of outstanding bonds, or if such declaration was made by the
holders of 25% in principal amount of outstanding bonds and the holders of a
majority in principal amount of outstanding bonds shall not have theretofore
delivered a written notice to the contrary, then such declaration shall ipso
facto be deemed to be annulled. (See Section 1 of Article VIII of the 1939
Mortgage.)
31
<PAGE>
Action by 1939 Mortgage Trustee: Except as otherwise provided in the 1939
Mortgage, the holders of a majority in principal amount of bonds outstanding
under the 1939 Mortgage have the right to require the 1939 Mortgage Trustee to
enforce the lien of the 1939 Mortgage and direct the time, method and place of
conducting any proceedings for any remedy available to the 1939 Mortgage Trustee
under the 1939 Mortgage. (See Section 15 of Article VIII of the 1939 Mortgage.)
No holder of bonds outstanding under the 1939 Mortgage has the right to enforce
the lien of the 1939 Mortgage without giving to the 1939 Mortgage Trustee
written notice of default and unless the holders of a majority in principal
amount of outstanding bonds shall have requested the 1939 Mortgage Trustee to
act and have offered the 1939 Mortgage Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred
thereby and the 1939 Mortgage Trustee shall have failed to take action within 60
days. (See Section 16 of Article VIII of the 1939 Mortgage.)
Concerning the 1939 Mortgage Trustee: The Company conducts banking
transactions with affiliates of the 1939 Mortgage Trustee in the normal course
of the Company's business and uses the 1939 Mortgage Trustee or its affiliates
as trustee for various debt issues.
LEGAL OPINIONS
The validity of the New Bonds will be passed upon for the Company by
LeBoeuf, Lamb, Greene, & MacRae, L.L.P., a limited liability partnership
including professional corporations, Denver, Colorado and New York, New York and
for any underwriters, agents or dealers by Brown & Wood LLP, New York, New York.
All legal matters pertaining to titles and the respective liens of the 1993
Mortgage and the 1939 Mortgage will be passed upon only by LeBoeuf, Lamb,
Greene, & MacRae, L.L.P. In giving its opinion, Brown & Wood LLP may rely as to
all matters of Colorado law upon the opinion of LeBoeuf, Lamb, Greene, & MacRae,
L.L.P.
EXPERTS
Reference is made to the Incorporated Documents for specification of
certain information incorporated herein by reference upon the authority of
experts. In addition, the statements made in "DESCRIPTION OF THE NEW BONDS --
Security" and "DESCRIPTION OF THE 1939 MORTGAGE", insofar as they are, or refer
to, statements of law or legal conclusions, have been prepared or reviewed by
LeBoeuf, Lamb, Greene, & MacRae, L.L.P., a limited liability partnership
including professional corporations, counsel for the Company, and have been set
forth herein on the authority of said firm as experts.
PLAN OF DISTRIBUTION
The Company may sell each type and series of New Bonds as applicable in
any of three ways: (i) directly to a limited number of institutional purchasers
or to a single purchaser, (ii) through agents or (iii) through underwriters or
dealers. The Prospectus
32
<PAGE>
Supplement relating to each series of New Bonds will set forth the terms of the
offering of such New Bonds, including the name or names of any such agents,
underwriters or dealers; the purchase price of such New Bonds and the net
proceeds to the Company from such sale; any underwriting discounts and other
items constituting underwriters' compensation; the initial public offering
price; and any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in any sale of a series of New Bonds, such New
Bonds will be acquired by such underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise set forth in the Prospectus Supplement
relating to a series of New Bonds, the obligations of any underwriter or
underwriters to purchase such New Bonds will be subject to certain conditions
precedent and such underwriter or underwriters will be obligated to purchase all
of such New Bonds if any are purchased, except that, in certain cases involving
a default by one or more underwriters, less than all of such New Bonds may be
purchased.
If an agent of the Company is used in any sale of a series of New Bonds,
any commission payable by the Company to such agent will be set forth in the
Prospectus Supplement relating to such series of New Bonds. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the New Bonds may be deemed to be underwriters, and any discount or commissions
received by them on the sale or resale of New Bonds may be deemed to be
underwriting discounts and commissions, under the Securities Act of 1933, as
amended (the "1933 Act"). Agents, underwriters and dealers may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the 1933 Act.
33
<PAGE>
- ------------------------------------ ----------------------------------------
No dealer, salesperson or other
individual has been authorized to
give any information or to make
any representations other than
contained or incorporated by ref-
erence in this Prospectus Supple-
ment, the applicable Pricing
Supplement or the Prospectus in $250,000,000
connection with the offer made by
this Prospectus Supplement, the
applicable Pricing Supplement and
the Prospectus and, if given or
made, such information or repre- LOGO
sentations must not be relied upon
as having been authorized by the
Company or the Agents. Neither
the delivery of this Prospectus
Supplement, the applicable Pricing PUBLIC SERVICE COMPANY
Supplement or the Prospectus nor OF COLORADO
any sale made hereunder and there-
under shall under any circumstance
create an implication that there
has not been any change in the
affairs of the Company since the
date hereof. This Prospectus Supp-
lement, the applicable Pricing
Supplement and the Prospectus do
not constitute an offer or solici-
tation by anyone in any juris-
diction in which such offer or
solicitation is not authorized or
in which the person making such
offer is not qualified to do so or
to anyone to whom it is unlawful
to make such offer or solicitation. Secured Medium-Term Notes, Series B
Due From Nine Months To Thirty Years
--------------- From Date of Issue
TABLE OF CONTENTS
Page
Prospectus Supplement ----------------
PROSPECTUS SUPPLEMENT
Supplemental Description of ----------------
the Notes.................... S-2
Plan of Distribution.......... S-8
Prospectus
Available Information......... 2
Incorporation of Certain
Documents By Reference....... 2 Merrill Lynch & Co.
The Company................... 3 Goldman, Sachs & Co.
Ratio of Consolidated Earnings
to Consolidated Fixed Charges. 4
Application of Proceeds........ 4
Description of the New Bonds... 4
Description of the 1939 Mortgage.24
Legal Opinions................ 32 _______, 1996
Experts....................... 32
Plan of Distribution.......... 32
- ------------------------------------ ----------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee.............................................. $121,213
* Accountants' fees and expenses ................................... 14,000
* Company counsel's fees and expenses .............................. 60,000
* Trustee's fees and expenses, including counsel
and authentication fees......................................... 35,000
* Printing expenses................................................. 20,000
* Rating agencies' fees ............................................ 60,000
* Blue Sky fees and expenses........................................ 11,000
* Miscellaneous expenses............................................ 100,000
-------
* Total expenses.................................................... $421,213
- ------------
*Estimated
Item 15. Indemnification of Directors and Officers.
Sections 7-108-402, 7-109-102, 7-109-103, 7-109-104, 7-109-105,
7-109-106, 7-109-107, 7-109-108 and 7-109-109 of the Colorado Business
Corporation Act provide for indemnification of directors, officers, employees,
fiduciaries and agents of Colorado corporations such as the Registrant, subject
to certain limitations, and authorize such corporations to purchase and maintain
insurance on behalf of such persons against any liability incurred in any such
capacity or arising out of their status as such. The Registrant currently has
such insurance in effect.
A resolution adopted at a special meeting of stockholders of the
Registrant held in November, 1943, provides: "That each Director and Officer of
the Company (or his legal representative) shall be indemnified by the Company
against all claims, liabilities, expenses and costs imposed upon or reasonably
incurred by him in connection with any action, suit or proceeding, or the
settlement or compromise of any such claim, liability, action, suit or
proceeding (other than amounts paid to the Company itself), in which he may be
involved by reason of his being or having been such Director or Officer of the
Company, except in relation to matters as to which he shall be finally adjudged
in any such action, suit or proceeding to have been derelict in the performance
of his duties as such Director or Officer, provided, however, in respect of any
such settlement or compromise that it shall have been determined, by a majority
of the Directors of the Company not affected by self interest, that such
settlement or compromise should be made, and that such Director or Officer had
not been derelict in the performance of his official duties; and provided
further that the foregoing indemnity shall not extend to or cover any claims,
liabilities, action, suit or proceeding under the Securities Act of 1933, or any
costs or expenses in connection therewith unless the Director or Officer of the
Company involved shall be finally adjudged in such action, suit or proceeding to
have been subject to no liability under said Act, or in case of
II-1
<PAGE>
settlement or compromise, unless the Company shall have obtained an opinion of
independent counsel to the effect that he is not liable under said Act. The
foregoing right of indemnification shall not be exclusive of any other right or
rights to which such Director or Officer may be entitled as a matter of law."
Article XV of the Registrant's Restated Articles of Incorporation,
as amended, provides: "To the fullest extent permitted by the Colorado
Corporation Code as the same exists or may hereafter be amended, a director of
this corporation shall not be liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director. Neither the
amendment, nor the repeal of this Article, nor the adoption of any provision of
the Articles of Incorporation inconsistent with this Article, shall eliminate or
reduce the protection afforded by this Article to a director of the corporation
with respect to any matter which occurred, or any cause of action, suit or claim
which but for this Article would have accrued or arisen, prior to such
amendment, repeal or adoption."
Item 16. Exhibits.
Exhibits are listed in the Exhibit Index on page II-6 hereof.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(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, as
amended (the "1993 Act"); (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; provided, however, that notwithstanding the foregoing,
any increase or decrease in the 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 Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent 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 the Company need not file a
post-effective amendment to include the information required to be included by
subsection (i) or (ii) if such information is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the
II-2
<PAGE>
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 purposes of determining any liability under the 1933
Act, each filing of the Registrant's annual report pursuant to Section 13(a) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions under Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
1933 Act 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 1933 Act and
will be governed by final adjudication of such issue.
II-3
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the Registrant whose signature
appears below hereby appoints Wayne H. Brunetti and R.C. Kelly, and each of them
severally, as his or her attorneys-in-fact to sign in his or her name and on his
or her behalf, in any and all capacities stated below, and to file with the
Securities and Exchange Commission any and all amendments, including
post-effective amendments, to this Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 and County of Denver and the State of Colorado, on the
22nd day of October, 1996.
PUBLIC SERVICE COMPANY OF COLORADO
By:/s/R. C. Kelly
-------------------
R.C. Kelly
Senior Vice President, Finance, Treasurer and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
/s/Wayne H. Brunetti
- ---------------------------------
Wayne H. Brunetti, President and Principal Executive Officer October 22, 1996
Chief Executive Officer and Director
/s/R. C. Kelly
- ---------------------------------
R.C. Kelly, Senior Vice President, Principal Financial Officer October 22, 1996
Finance, Treasurer and Chief
Financial Officer
/s/ W. Wayne Brown
- ---------------------------------
W. Wayne Brown, Controller Principal Accounting Officer October 22, 1996
/s/D. D. Hock
- ---------------------------------
D.D. Hock, Chairman of the Director October 22, 1996
Board and Director
II-4
<PAGE>
/s/Collis P. Chandler, Jr.
- ---------------------------------
Collis P. Chandler, Jr. Director October 22, 1996
/s/Doris M. Drury
- ---------------------------------
Doris M. Drury Director October 22, 1996
/s/Thomas T. Farley
- ---------------------------------
Thomas T. Farley Director October 22, 1996
/s/Gayle L. Greer
- ---------------------------------
Gayle L. Greer Director October 22, 1996
/s/A. Barry Hirschfeld
- ---------------------------------
A. Barry Hirschfeld Director October 22, 1996
/s/George B. McKinley
- ---------------------------------
George B. McKinley Director October 22, 1996
/s/Will F. Nicholson, Jr.
- ---------------------------------
Will F. Nicholson, Jr. Director October 22, 1996
/s/J. Michael Powers
- ---------------------------------
J. Michael Powers Director October 22, 1996
/s/Thomas E. Rodriguez
- ---------------------------------
Thomas E. Rodriguez Director October 22, 1996
/s/Rodney E. Slifer
- ---------------------------------
Rodney E. Slifer Director October 22, 1996
/s/W. Thomas Stephens
- ---------------------------------
W. Thomas Stephens Director October 22, 1996
/s/Robert G. Tointon
- ---------------------------------
Robert G. Tointon Director October 22, 1996
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
1 Form of Distribution Agreement
3(a)* Restated Articles of Incorporation of the Registrant dated July 9,
1990 (Form S-3, File No. 33-54877 - Exhibit 3(a)).
3(b)* Articles of Amendment of the Restated Articles of Incorporation of
the Registrant dated May 11, 1994 (Form S-3, File No. 33-54877 -
Exhibit 3(b)).
4(a)(1)* Indenture, dated as of December 1, 1939, providing for the issuance
of First Mortgage Bonds (Form 10 for 1946-Exhibit (B-1)).
4(a)(2)* Indentures supplemental to Indenture dated as of December 1, 1939:
<TABLE>
<CAPTION>
Previous Filing: Previous Filing:
Form; Date or Form, Date or Exhibit
Dated as of File No. Exhibit No. Dated as of File No. No.
- ----------- -------- ----------- ----------- -------- ---
<S> <C> <C> <C> <C> <C>
Mar. 14, 1941 10, 1946 B-2 July 1, 1968 8-K, July 1968 2
May 14, 1941 10, 1946 B-3 Apr. 25, 1969 8-K, Apr. 1969 1
Apr. 28, 1942 10, 1946 B-4 Apr. 21, 1970 8-K, Apr. 1970 1
Apr. 14, 1943 10, 1946 B-5 Sept. 1, 1970 8-K, Sept. 1970 2
Apr. 27, 1944 10, 1946 B-6 Feb. 1, 1971 8-K, Feb. 1971 2
Apr. 18, 1945 10, 1946 B-7 Aug. 1, 1972 8-K, Aug. 1972 2
Apr. 23, 1946 10-K, 1946 B-8 June 1, 1973 8-K, June 1973 1
Apr. 9, 1947 10-K, 1946 B-9 Mar. 1, 1974 8-K, Apr. 1974 2
June 1, 1947 S-1, (2-7075) 7(b) Dec. 1, 1974 8-K, Dec. 1974 1
Apr. 1, 1948 S-1, (2-7671) 7(b)(1) Oct. 1, 1975 S-7, (2-60082) 2(b)(3)
May 20, 1948 S-1, (2-7671) 7(b)(2) Apr. 28, 1976 S-7, (2-60082) 2(b)(4)
Oct. 1, 1948 10-K, 1948 4 Apr. 28, 1977 S-7, (2-60082) 2(b)(5)
Apr. 20, 1949 10-K, 1949 1 Nov. 1, 1977 S-7, (2-62415) 2(b)(3)
Apr. 24, 1950 8-K, Apr.1950 1 Apr. 28, 1978 S-7, (2-62415) 2(b)(4)
Apr. 18, 1951 8-K, Apr. 1951 1 Oct. 1, 1978 10-K, 1978 D(1)
Oct. 1, 1951 8-K, Nov. 1951 1 Oct. 1, 1979 S-7, (2-66484) 2(b)(3)
Apr. 21, 1952 8-K, Apr. 1952 1 Mar. 1, 1980 10-K, 1980 4(c)
Dec. 1, 1952 S-9, (2-11120) 2(b)(9) Apr. 28, 1981 S-16,(2-74923) 4(c)
Apr. 15, 1953 8-K, Apr. 1953 2 Nov. 1, 1981 S-16,(2-74923) 4(d)
April 19, 1954 8-K, Apr. 1954 1 Dec. 1, 1981 10-K, 1981 4(c)
Oct. 1, 1954 8-K, Oct. 1954 1 Apr. 29, 1982 10-K, 1982 4(c)
Apr. 18, 1955 8-K, Apr. 1955 1 May 1, 1983 10-K, 1983 4(c)
Apr. 24, 1956 10-K, 1956 1 Apr. 30, 1984 S-3,(2-95814) 4(c)
May 1, 1957 S-9, (2-13260) 2(b)(15) Mar. 1, 1985 10-K, 1985 4(c)
April 10, 1958 8-K, Apr. 1958 1 Nov. 1, 1986 10-K, 1986 4(c)
May 1, 1959 8-K, May 1959 2 May 1, 1987 10-K, 1987 4(c)
Apr. 18, 1960 8-K, Apr. 1960 1 July 1, 1990 S-3,(33-37431) 4(c)
Apr. 19, 1961 8-K, Apr. 1961 1 Dec. 1, 1990 10-K, 1990 4(c)
Oct. 1, 1961 8-K, Oct. 1961 2 Mar. 1, 1992 10-K, 1992 4(d)
Mar. 1, 1962 8-K, Mar. 1962 3(a) Apr. 1, 1993 10-Q, June 30, 1993 4(a)
June 1, 1964 8-K, June 1964 1 June 1, 1993 10-Q, June 30, 1993 4(b)
May 1, 1966 8-K, May 1966 2 Nov. 1, 1993 S-3, (33-51167) 4(a)(3)
July 1, 1967 8-K, July 1967 2 Jan. 1, 1994 10-K, Dec. 31, 1993 4(a)(3)
Sept. 2, 1994 8-K, Sept. 1994 4(a)
May 1, 1996 10-Q, June 30, 1996 4(a)
</TABLE>
4(a)(3) Form of Supplemental Indenture establishing series of First Mortgage
Bonds under the Indenture, dated as of December 1, 1939.
II-6
<PAGE>
4(b)(1)* Indenture, dated as of October 1, 1993, providing for the issuance
of First Collateral Trust Bonds (Form 10-Q, September 30, 1993 -
Exhibit 4(a)).
4(b)(2)* Indentures supplemental to Indenture dated as of October 1, 1993:
<TABLE>
<CAPTION>
Previous Filing:
Form; Date or Exhibit
Dated as of File No. No.
----------- -------- ---
<S> <C> <C>
November 1, 1993 S-3, (33-51167) 4(b)(2)
January 1, 1994 10-K, Dec. 31, 1993 4(b)(3)
September 2, 1994 8-K, Sept. 1994 4(b)
May 1, 1996 10-Q, June 30, 1996 4(b)
</TABLE>
4(b)(3) Form of Supplemental Indenture establishing series of First Collateral
Trust Bonds under the Indenture, dated as of October 1, 1993.
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., a partnership
including professional corporations.
12 Computation of Ratio of Consolidated Earnings to Consolidated Fixed
Charges.
15 Letter of Arthur Andersen LLP regarding interim unaudited financial
information.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P., a partnership
including professional corporations is included in its opinion filed as
Exhibit 5.
24 Power of Attorney is included on page II-4 hereof.
25 Statement of Eligibility of First Trust of New York, National
Association, as successor trustee under the Indenture, dated as of
October 1, 1993.
- -----------------
* Previously filed as indicated and incorporated herein by reference.
II-7
Exhibit 1
PUBLIC SERVICE COMPANY OF COLORADO
(a Colorado corporation)
Secured Medium-Term Notes, Series B
Due From Nine Months to Thirty Years from Date of Issue
DISTRIBUTION AGREEMENT
[DATE]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
10th Floor, North Tower
New York, New York 10281-1310
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Dear Sirs:
Public Service Company of Colorado, a Colorado corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Goldman, Sachs & Co. (each an "Agent";
collectively, the "Agents") with respect to the issue and sale by the Company of
its Secured Medium-Term Notes, Series B (being a series of First Collateral
Trust Bonds) (the "Notes"). The Notes are to be issued under the Company's
Indenture dated as of October 1, 1993, as heretofore supplemented by various
supplemental indentures, including a supplemental indenture dated as of November
1, 1996, to First Trust of New York, National Association, as successor trustee
<PAGE>
(the "Trustee") to Morgan Guaranty Trust Company of New York (formerly Guaranty
Trust Company of New York). Said Indenture as so supplemented and to be
supplemented is hereinafter called the "Indenture" and such supplemental
indenture dated as of November 1, 1996 is hereinafter called the "Supplemental
Indenture". As of the date hereof, the Company has authorized the issuance and
sale of up to $250,000,000 aggregate principal amount of Notes to or through the
Agents pursuant to the terms of this Agreement.
This Agreement provides both for the sale of Notes by the Company to one
or more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be specified by the Company and agreed to by the applicable Agent), in which
case such Agent will act as an agent of the Company in soliciting purchases of
the Notes. The Company may also sell Notes directly to investors and other
investors on its own behalf and not through an Agent acting as agent.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-[ ]) for the registration
of First Collateral Trust Bonds, including the Notes, under the Securities Act
of 1933 (the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement, [as amended], was
declared effective by the SEC at [ ], Eastern Standard Time, on [ ] (the later
of such time and date or the time and date of the filing thereafter of the
Company's most recent Annual Report on Form 10-K (a "10-K Report") is
hereinafter called the "Effective Date"). The Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement and the prospectus constituting a part thereof, and any
prospectus supplement and pricing supplement relating to the Notes, including
all documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes, whether or not
such revised prospectus is required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use.
-2-
<PAGE>
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein, the Company hereby agrees that Notes will be sold to or through the
Agents, except that the Company reserves the right to sell the Notes on its own
behalf directly to investors in those jurisdictions where it is authorized to do
so and, from time to time, to appoint additional agents to sell the Notes,
provided that the Company shall furnish the Agents with reasonable advance
notification of the appointment of any additional agent to sell the Notes and
provided further that such additional agents shall be required to execute
distribution agreements in form and substance substantially similar to this
Agreement.
(b) Sale of Notes. The Company shall not sell or approve the solicitation
of purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate principal amount of
Notes registered pursuant to the Registration Statement. The Agents shall have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If requested by the Company and agreed to by
an Agent, such Agent, acting solely as agent for the Company and not as
principal, will solicit purchases of the Notes. Such Agent will communicate to
the Company, orally, each offer to purchase Notes solicited by it on an agency
basis, other than those offers rejected by such Agent. Such Agent shall have the
right, in its discretion reasonably exercised, to reject any proposed purchase
of Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein. The Company may accept or reject any
proposed purchase of Notes, in whole or in part. Such Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted by
the Company. Such Agent shall not have any liability to the Company in the event
that any such purchase is not consummated for any reason. If the Company shall
default on its obligation to deliver Notes to a purchaser whose offer it has
accepted, the Company shall (i) hold such Agent harmless against any loss, claim
or damage arising from or as a result of such default by the Company and (ii)
pay to such Agent any commission to which it would otherwise be entitled absent
such default.
-3-
<PAGE>
(e) Reliance. The Company and the Agents agree that any Notes purchased by
one or more Agents as principal shall be purchased, and any Notes the placement
of which an Agent arranges as agent shall be placed by such Agent in reliance on
the representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of the times referred to in Section 7(a) hereof (each of the times referenced
above being referred to hereafter as a "Representation Date"), as follows:
(i) Registration Statement and Prospectus. At the Effective Date,
the Registration Statement and the Indenture complied, and as of the
applicable Representation Date will comply, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the SEC promulgated thereunder. The
Registration Statement, at the Effective Date, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective and as of the applicable Representation Date, will not, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of the date hereof does not, and as of
the applicable Representation Date will not, include an untrue statement
of a material fact or omit 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; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by the Agents expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which constitutes the Trustee's Statement of Eligibility under the 1939
Act (Form T-1).
-4-
<PAGE>
(ii) Incorporated Documents. The documents incorporated by
reference into the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case may
be, in all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC thereunder (the "1934 Act Regulations"),
and, when read together and with the other information in the Prospectus,
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(iii) Accountants. The accountants who certified the financial
statements and supporting schedules included or incorporated by reference
in the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods specified; except as
otherwise stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; and the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the information required to be stated therein.
(v) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in the
business, property or condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, and (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material in
relation to the Company and its subsidiaries considered as one enterprise;
and, except as so stated or contemplated, neither the Company nor any of
its subsidiaries has any contingent obligations which are material to the
Company and its subsidiaries considered as one enterprise.
-5-
<PAGE>
(vi) Due Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Colorado with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have a
material adverse effect on the business, property or condition, financial
or otherwise, of the Company and its subsidiaries considered as one
enterprise.
(vii) Authorization and Validity of this Agreement, the Indenture
and the Notes. This Agreement has been duly and validly authorized by the
Company and, upon execution and delivery by the Agents and subject to any
principles of public policy limiting the right to enforce the
indemnification provisions contained herein, will be a valid and binding
agreement of the Company; the Indenture and the Supplemental Indenture
have each been duly and validly authorized by the Company and, upon
execution and delivery of the Supplemental Indenture by the Trustee, the
Indenture (including the Supplemental Indenture) will be a valid and
binding mortgage of the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by laws and principles of
equity affecting generally the enforcement of mortgagees' and other
creditors' rights, including without limitation, bankruptcy and insolvency
laws and state laws which affect the enforcement of certain remedial
provisions of the Indenture; the issuance and sale by the Company of the
Notes pursuant to this Agreement have been duly authorized by all
necessary corporate action and, when issued, authenticated and delivered
by the Company pursuant to this Agreement and the Indenture against
payment of the consideration therefor, the Notes will be valid and binding
obligations of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by laws and principles of
equity affecting generally the enforcement of mortgagees' and other
creditors' rights, including without limitation, bankruptcy and insolvency
laws and state laws which affect the enforcement of certain remedial
provisions of the Indenture; and the Notes and the Indenture will be
substantially in the form heretofore delivered to the Agents and conform
in all material respects to all statements relating thereto contained in
the Prospectus; and the Notes will be entitled to the benefits and
security of the Indenture, and will be secured equally and ratably (except
to the extent that any sinking, amortization, improvement or other fund
may afford
-6-
<PAGE>
additional security for the bonds of any particular series) with all other
bonds outstanding under the Indenture.
(viii) Class A Bonds. The issuance and delivery by the Company of
the Class A Bonds (as defined in the Indenture) to be made the basis of
the authentication and delivery of the Notes (the "Class A Bonds") have
been duly authorized by all necessary corporate action; and when (i) the
Class A Bonds have been issued, authenticated and delivered to the Trustee
pursuant to the Indenture and (ii) the Notes have been issued,
authenticated and delivered to the Purchasers pursuant to this Agreement
against payment of the consideration therefor specified herein, the Class
A Bonds will be valid and binding obligations of the Company, enforceable
in accordance with their terms, except as enforcement thereof may be
limited by laws and principles of equity affecting generally the
enforcement of mortgagees' and other creditors' rights, including without
limitation bankruptcy and insolvency laws and state laws which affect the
enforcement of certain remedial provisions of the PSCO 1939 Mortgage (as
defined in the Indenture), and will be entitled to the benefits of the
PSCO 1939 Mortgage.
(ix) No Defaults. The Company is not in violation of its charter or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of them or their properties may
be bound or any law, administrative regulation or administrative or court
order or decree except to the extent set forth in the Registration
Statement and the Prospectus or except to the extent that such violation
or default would not have a material adverse effect on the business,
property or condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise; and the execution and delivery
of this Agreement and the Supplemental Indenture, the incurrence of the
obligations herein set forth and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a
breach of, or default under or (other than under the Indenture and the
PSCO 1939 Mortgage with respect to the Notes and the Class A Bonds) result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to any contract, lease, note,
mortgage, indenture, loan agreement or other instrument to which the
Company is a party or by which it may be bound or to which any of the
property or assets of the Company is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or court
order or decree.
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(x) Legal Proceedings; Contracts. Except as may be set forth in the
Registration Statement and the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which would
result in any material adverse change in the business, property or
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or which would materially and adversely
affect the consummation of this Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries which are required to
be filed as exhibits to the Registration Statement by the 1933 Act or by
the 1933 Act Regulations which have not been so filed.
(xi) Authorization, Approval and Consent. The Company has filed with
The Public Utilities Commission of the State of Colorado (the "Colorado
Commission") an application with respect to, among other things, the
issuance and sale of the Company's debt securities, including the Notes,
and the Colorado Commission has issued its order authorizing and approving
such issuance and sale. If the above-mentioned order continues in full
force and effect, no further consent, order or authorization of or decree
or approval by the Colorado Commission or any other court or governmental
or regulatory authority or body is necessary in connection with the
consummation by the Company of the transactions contemplated by this
Agreement or the issuance and sale by the Company of the Notes pursuant to
this Agreement, except that there must be compliance with the securities
laws in the jurisdictions in which the Notes are to be offered and sold.
(xii) Ratings. The medium-term note program pursuant to which the
Notes are being issued (the "Program") as well as the Notes are rated [ ]
by Standard & Poor's Ratings Service and [ ] by Moody's Investors Service,
Inc., or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a) hereof.
(xiii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each, a "Significant Subsidiary"), as defined in
Rule 405 of Regulation C of the 1933 Act Regulations, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
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business, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the business, property or
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise; all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly and validly issued and
is fully paid and non-assessable; and all of the capital stock of each
Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity except that the stock of
certain of such subsidiaries is pledged under the PSCO 1939 Mortgage.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate.
SECTION 3. Purchases as Principals; Solicitations as Agents.
(a) Purchases as Principals. Unless otherwise specified by the Company and
agreed to by an Agent, Notes shall be purchased by one or more Agents as
principal in accordance with terms agreed upon by such Agent or Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in Exhibit A hereto and be agreed upon orally,
with written confirmation prepared by such Agent or Agents and facsimiled to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the agreement of one or more Agents to purchase Notes
from the Company as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow all or any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes by one or more Agents
as principal, such Agent or Agents shall specify the requirements for the
stand-off agreement, officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(l), 7(a), 7(b) and 7(c) hereof.
(b) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to
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the terms and conditions herein set forth, when agreed by the Company and an
Agent, such Agent, as an agent of the Company, will use its reasonable efforts
to solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. The Agents are not authorized to appoint
sub-agents with respect to Notes sold through them as agent. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. As soon as
practicable after receipt of instructions from the Company, the Agents will
suspend solicitation of offers to purchase the Notes from the Company until such
time as the Company has advised the Agents that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as may
be otherwise specified in the applicable Pricing Supplement, the Notes will be
issued in denominations of U.S. $100,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to the
sale of Notes shall be agreed upon from time to time by the Agents, the Company
and the Trustee (the "Procedures"). The Agents and the Company agree to perform,
and the Company agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately, and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the transmittal to the SEC for
filing of any amendment or supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act which will be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus,
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(iv) of any request by the SEC for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment. In addition, the Company will
notify the Agents if the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities of the
Company shall have been changed, or if any such rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Program or any debt securities of the
Company or shall have withdrawn the rating of the Program or any debt securities
of the Company, promptly after learning of any such event.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
subsection (j) of this Section 4, the Company will give the Agents advance
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus (other
than a Pricing Supplement), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and will furnish to the Agents copies of
any such amendment or supplement or other documents a reasonable time in advance
of such filing or use.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to each Agent one (1) signed and as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (j) of this Section 4, if any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Agents or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
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1933 Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers to
purchase the Notes in their capacity as agents and to cease sales of any Notes
the Agents may then own as principals, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(e) Periodic Financial Information. Except as otherwise provided in
subsection (j) of this Section 4, on the date on which there shall be released
to the general public interim financial statement information related to the
Company with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, the
Company shall furnish such information to the Agents, confirmed in writing.
(f) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (j) of this Section, on the date on which there
shall be released to the general public financial information included in or
derived from the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish such information to the Agents, confirmed
in writing.
(g) Earnings Statements. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule 158)
of the Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as provided above. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiation or threatening of any proceeding for such purpose.
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(i) 1934 Act Filings. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act in connection
with sales of the Notes, will file all documents required to be filed with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (b), (d), (e) or (f) of this
Section 4 or of subsections (a), (b), (c) or (d) of Section 7 during any period
from the time the Agents shall have suspended solicitation of purchases of the
Notes in their capacity as agents pursuant to a request from the Company to
cease such solicitations, until such time as the Company notifies the Agents
that solicitation of purchases of the Notes should be resumed; provided,
however, that compliance with such subsections shall be required for any portion
of such period during which any Agent has notified the Company that it holds any
Notes purchased hereunder as principal pursuant hereto.
(k) Preparations of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
SEC on the third business day after the date on which such Pricing Supplement is
first used.
(l) Stand-Off Agreement. If specified by the applicable Agent or Agents in
connection with a purchase of Notes from the Company as principal, between the
date of the agreement to purchase such Notes and the Settlement Date with
respect to such purchase, the Company will not, without the prior written
consent of such Agent or Agents, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Company
(other than the Notes that are to be sold pursuant to such agreement or
commercial paper and borrowings under bank lines of credit in the ordinary
course of business).
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the Company as
principal and to solicit offers to purchase Notes as agents of the Company, and
the obligations of any purchaser of Notes sold through an Agent as agent, will
be subject at all times to the accuracy of the representations and warranties on
the part of the Company herein contained and to the accuracy of the statements
of the Company's officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all its
covenants and agreements herein contained and to the following additional
conditions precedent:
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(a) At the date hereof, the Agents shall have received a certificate,
dated the date hereof, of the Company signed by its President or one
of its Vice Presidents and the Treasurer or an Assistant Treasurer of
the Company, substantially in the form thereof attached as Appendix I
hereto.
(b) At the date hereof, the Agents shall have received opinions, dated the
date hereof, of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for
the Company, and Brown & Wood LLP, counsel for the Agents,
substantially in the forms thereof attached hereto as Appendix II and
III, respectively, with reproduced or conformed copies thereof for
each of the Agents.
(c) At the date hereof, the Agents shall have received a letter, dated the
date hereof, from Arthur Andersen LLP, substantially to the effect set
forth in Appendix IV hereto, with reproduced or conformed copies
thereof for each of the Agents.
(d) At the date hereof, Brown & Wood LLP, counsel for the Agents, shall
have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Notes and the issuance and delivery of the Class A Bonds
as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Notes and the issuance and delivery of
the Class A Bonds as herein contemplated shall be satisfactory in form
and substance to the Agents and Brown & Wood LLP.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the
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Company's account but in no event shall the Company be required to pay such
Agent any commission with respect to such Note.
SECTION 7. Subsequent Documentation Requirements of the Company.
The Company covenants and agrees that:
(a) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement and other than by an amendment or supplement which
relates exclusively to the issuance and/or offering of securities other than the
Notes), (ii) there is filed with the SEC any document incorporated by reference
into the Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance and/or offering of securities other than the Notes,
unless an Agent shall otherwise specify), or (iii) (if required by an Agent in
connection with the purchase of Notes from the Company by one or more Agents as
principal) the Company sells Notes to such Agent or Agents as principal, the
Company shall furnish or cause to be furnished to the Agents forthwith a
certificate dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form satisfactory to the Agents, to the effect that the
statements contained in the certificate referred to in Section 5(a) hereof which
were last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(a) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(b) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or an amendment or supplement providing solely for
the inclusion of additional financial information, and other than by an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K or Quarterly Report on Form 10-Q, unless an Agent shall otherwise
reasonably request), or (iii) (if required by an Agent in connection with the
purchase of Notes from the Company by one or more Agents as principal) the
Company sells Notes to such Agent or Agents as principal, the Company shall
furnish or cause to be furnished forthwith to the Agents and to counsel to the
Agents a written opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to
the Company, dated the date of filing with the SEC of such supplement or
document, the
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date of effectiveness of such amendment, or the date of such sale, as the case
may be, in form and substance satisfactory to the Agents, of the same tenor as
the opinion referred to in Section 5(b) hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, such counsel shall furnish the Agents with a letter substantially in
the form of Appendix V hereto to the effect that the Agents may rely on such
last opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(c) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information, (ii) there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (iii) (if required by an Agent in connection with the
purchase of Notes from the Company by one or more Agents as principal) the
Company sells Notes to such Agent or Agents as principal, the Company shall
cause Arthur Andersen LLP forthwith to furnish the Agents a letter, dated the
date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to the Agents, of the same tenor as the letter referred to
in Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter, and with such
changes as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, Arthur Andersen LLP may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of the Agents, such letter
should cover such other information.
(d) Subsequent Delivery of Documents Pursuant to the Indenture. Each time
that the Company shall deliver documents to the Trustee pursuant to Article IV
of the Indenture with respect to the Notes or Article III of the PSCo 1939
Mortgage (as defined in the Indenture) with respect to Class A Bonds being
issued with respect to the Notes, the Company shall furnish or cause to be
furnished to the Agents and to counsel to the Agents a copy of such documents.
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SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the 1933 Act or any other statute or common law and to
reimburse each such Agent and controlling person for any legal or other expenses
(including, subject to subparagraph (c) of this Section 8, reasonable counsel
fees) incurred by them, as incurred, in connection with any such losses, claims,
damages or liabilities or in connection with investigating or preparing for or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or in connection with
effecting a settlement of any such litigation, investigation or proceeding (if
such settlement is effected with the written consent of the Company), insofar as
such losses, claims, damages, liabilities, expenses, litigation, investigations
or proceedings arise out of, or are based upon, an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
in any amendment thereto, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or an untrue statement or alleged untrue statement of a
material fact included in the Prospectus, as it may have been or be amended or
supplemented, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this subparagraph (a) shall not apply
to any such losses, claims, damages, liabilities, expenses, litigation,
investigations or proceedings arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged omission,
if such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by the Agents expressly for use
in the Prospectus, or any amendment or supplement thereto, or arising out of, or
based upon, any such untrue statement or alleged untrue statement in, or any
such omission or alleged omission from, the Trustee's Statement of Eligibility
under the 1939 Act filed as an exhibit to the Registration Statement; and
provided, further, that the indemnity agreement contained in this subparagraph
(a) shall not inure to the benefit of any Agent or of any person controlling
such Agent on account of any such loss, claim, damage, liability, expense,
litigation, investigation or proceeding arising from the sale of Notes to any
person if (i) such Agent shall have failed to send or give to such person (A)
with or prior to the written confirmation of such sale, a copy of the Prospectus
together with any amendments or supplements thereto which shall theretofore have
been furnished to such Agent, or (B) with or prior to the delivery of such Notes
to such person, a copy of any amendment or supplement to the Prospectus which
shall have been furnished to such Agent subsequent to such written confirmation
and prior to the delivery
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of such Notes to such person, and (ii) in either such case, any untrue or
misleading statement or omission made or alleged to have been made shall have
been eliminated or remedied in the Prospectus or the amendment or supplement
thereto which such Agent so failed to send or give to such person and such Agent
would not have been liable had a copy of such Prospectus, amendment or
supplement, as the case may be, been so sent or given to such person. Each Agent
agrees promptly to notify the Company and each other Agent of the commencement
of any litigation, investigations or proceedings against it or any such
controlling person in connection with the issuance and sale of the Notes.
(b) Indemnification of the Company. Each Agent agrees to indemnify and
hold harmless the Company, its directors and officers, and each person who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act or any other statute
or common law and to reimburse each of them for any legal or other expenses
(including, subject to subparagraph (c) of this Section 8, reasonable counsel
fees) incurred by them, as incurred, in connection with any such losses, claims,
damages or liabilities or in connection with investigating or preparing for or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or in connection with
effecting a settlement of any such litigation, investigation or proceeding (if
such settlement is effected with the written consent of each Agent affected
thereby), insofar as such losses, claims, damages, liabilities, expenses,
litigations, investigations or proceedings arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact included in the
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by the Agents
expressly for use in the Prospectus, or any amendment or supplement thereto. The
Company agrees promptly to notify the Agents of the commencement of any
litigation, investigation or proceeding against it, any such director or
officer, or any such controlling person, in connection with the issuance and
sale of the Notes.
(c) General. The Company and the several Agents each agrees that, upon
receipt of notice of the commencement of any action against it or any director,
officer or person controlling the Company or any person controlling such Agent
as aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give notice of the
commencement thereof to the party or parties against whom indemnity shall be
sought hereunder, but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified
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<PAGE>
party otherwise than on account of such indemnity agreement. In case such notice
of any such action shall be so given, such indemnifying party shall be entitled
to participate at its own expense in the defense, or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense, of such
action, in which event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to one local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. The indemnity agreements contained in this
Section 8 shall be in addition to any liability which the Company or the Agents
may otherwise have.
SECTION 9. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of The Depository Trust
Company;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the program
relating to the Notes and incurred from time to time in connection
with the transactions contemplated hereby;
(f) The qualification of the Notes under state securities or
"Blue Sky" laws in accordance with the provisions of Section 4(h)
hereof, including filing fees and the reasonable fees and
disbursements of counsel to the Agents in connection therewith and in
connection with the preparation of any Blue Sky Survey and any Legal
Investment Survey, and the printing and delivery to the Agents of
copies of any Blue Sky Survey and any Legal Investment Survey;
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<PAGE>
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with the listing
of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(l)The cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) Any reasonable out-of-pocket expenses incurred by the Agents
in connection with this Agreement, provided that the Agents have
notified the Company of any such expenses prior to incurring such
expenses.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Company, and shall survive each delivery of and payment for
any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement (excluding any agreement
by one or more Agents to purchase Notes from the Company as principal) may be
terminated for any reason, at any time by either the Company or an Agent with
respect to such Agent upon the giving of 30 days' written notice of such
termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent or Agents may terminate any agreement by
such Agent or Agents to purchase Notes from the Company as
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<PAGE>
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto, if:
(i) (A) the Company shall have failed or refused to perform any
covenant or agreement on its part to be performed hereunder at
or prior to the Settlement Date, or (B) the conditions
specified in Section 5 hereof shall not have been fulfilled;
(ii) the subject matter of the Prospectus or of any amendment or
supplement to the Prospectus (other than an amendment or
supplement relating solely to the activities of any Agent or
Agents), in the reasonable judgment of such Agent, shall have
made it impracticable for such Agent to market the Notes, or
to enforce contracts for the sale of the Notes, upon the terms
specified in the Prospectus;
(iii) (A) there shall have occurred any outbreak or escalation of
hostilities or other national or international calamity or
crisis, (B) trading in the Common Stock of the Company shall
have been suspended by the SEC or any national securities
exchange, or trading generally on the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on said exchange or by
order of the SEC or any other governmental authority having
jurisdiction, or (C) a banking moratorium shall have been
declared by either Federal or New York State authorities, in
any such case with the result that, in the reasonable judgment
of such Agent, it shall be impracticable for such Agent to
market the Notes, or to enforce contracts for the sale of the
Notes, upon the terms specified in the Prospectus; or
(iv) the rating assigned by Moody's Investors Service, Inc. or
Standard & Poor's Ratings Service to the Program or any debt
securities of the Company as of the date of such agreement to
purchase Notes from the Company as principal shall have been
lowered since such date or Moody's Investors Service, Inc. or
Standard & Poor's Ratings Service shall have informed the
Company or publicly announced that it has under surveillance
or review, with possible negative implications, its rating of
the Program or any debt securities of the Company or shall
have withdrawn its rating of the Program or any debt
securities of the Company.
(c) General. In the event of any such termination, no party will have any
liability in respect of this Agreement or such agreement to purchase Notes from
the Company as principal, as the case may be, to the other parties hereto or
thereto,
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<PAGE>
except that (i) the Agents shall be entitled to any commissions earned in
accordance with the third paragraph of Section 3(b) hereof, (ii) if at the time
of termination (a) any Agent shall own any Notes purchased by it hereunder as
principal with the intention of reselling them and shall so notify the Company
or (b) an offer to purchase any of the Notes has been accepted by the Company
but the time of delivery to the purchaser or his agent of the Note or Notes
relating thereto has not occurred, the covenants set forth in Sections 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, (iii) the covenant set forth in Section 4(g) hereof, the
indemnity agreement set forth in Section 8 hereof, and the provisions of
Sections 10, 13 and 14 hereof shall remain in effect and (iv) if such
termination is pursuant to subsection (a), (b)(i), (b)(ii) or (b)(iv) of this
Section 11, the Company shall reimburse the expenses of the Agents and their
counsel to the extent provided in Section 9.
SECTION 12. Notices.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail, by
telegram or by facsimile (confirmed by telephone), and any such notice shall be
effective when received at the address specified below.
If to the Company:
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202
Attention:
Facsimile:
Telephone:
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Facsimile: (212) 449-2234
Telephone:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Control - Medium-Term Notes
Facsimile: (212) 357-8680
Telephone: (212) 902-3711
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<PAGE>
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 12.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties created
hereby shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such
State.
SECTION 15. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
among the Agents and the Company in accordance with its terms.
Very truly yours,
PUBLIC SERVICE COMPANY OF COLORADO
By________________________________
Title:
CONFIRMED AND ACCEPTED, as of the date
first above written:
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By__________________________________
Name:
Title:
GOLDMAN, SACHS & CO.
____________________________________
(Goldman, Sachs & Co.)
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<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $________
Interest Rate:
Default Rate:
Interest Payment Dates:
If Redeemable at the option of the Company:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable at the option of Holders:
Repayment Date(s):
Repayment Price:
Original Issue Date:
Date of Maturity:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any,
from ____________
Settlement Date and Time:
Additional Terms:
In connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(a) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(b) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(c) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(l) of the Distribution
Agreement.
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<PAGE>
Schedule A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
Percent of
Maturity Ranges Principal Amount
--------------- ----------------
From 9 months to less than 1 year . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . .150%
From 18 months to less than 2 years . . . . . . .200%
From 2 years to less than 3 years . . . . . . . .250%
From 3 years to less than 4 years . . . . . . . .350%
From 4 years to less than 5 years . . . . . . . .450%
From 5 years to less than 6 years . . . . . . . .500%
From 6 years to less than 7 years . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . .600%
From 10 years to less than 15 years . . . . . . .625%
From 15 years to less than 20 years . . . . . . .700%
From 20 years to 30 years . . . . . . . . . . . .750%
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<PAGE>
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
-----------------------------
PUBLIC SERVICE COMPANY OF COLORADO
We, [authorized officers' names], [the President] [a Vice President] and
[the Treasurer] [an Assistant Treasurer] respectively, of Public Service Company
of Colorado, a Colorado corporation (the "Company"), pursuant to Section 5(a) of
the Distribution Agreement dated _____________ (the "Distribution Agreement")
among the Company and [Agents], hereby certify that, to the best of our
knowledge, after reasonable investigation:
1. Since the respective dates as of which information is given in the
Registration Statement and Prospectus (as such terms are defined in the
Distribution Agreement), except as otherwise stated therein or contemplated
thereby, [or since [insert date of applicable agreement by an Agent to purchase
Notes from the Company as principal]], there has not been any material adverse
change in the business, property or condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business;
2. The representations and warranties of the Company contained in Section 2
of the Distribution Agreement are true and correct with the same force and
effect as though expressly made at and as of the date hereof;
3. The Company has performed or complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
hereof; and
4. No stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Securities and Exchange Commission.
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<PAGE>
IN WITNESS WHEREOF, we have hereunto signed our names and affixed the seal
of the Company.
Dated: _____________, ____
________________________________
[Title]
[SEAL]
________________________________
[Title]
I-2
<PAGE>
Appendix II
to
Distribution
Agreement
[LETTERHEAD OF LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.]
[Agents]
Ladies and Gentlemen:
We have acted as counsel to Public Service Company of Colorado (the
"Company") in connection with the sale by the Company of up to $250,000,000
aggregate principal amount of its Secured Medium-Term Notes, Series B (being a
series of First Collateral Trust Bonds) (the "Notes"), which are registered
pursuant to the registration statement (File No. 333-____) of the Company for
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of up to $400,000,000 in aggregate principal amount of its First Collateral
Trust bonds, including the Notes. This opinion is being delivered to you
pursuant to Section 5(b) of the Distribution Agreement, dated _______ (the
"Agreement"), between the Company and the several agents named therein (the
"Agents"). Unless otherwise stated, defined terms used herein shall have the
respective meanings given them in the Agreement.
We are not general counsel to the Company and our representation of the
Company consists of advising it with respect to corporate and regulatory matters
as to which we have been specifically consulted. We are familiar with the legal
matters pertaining to, and the corporate proceedings of the Company taken with
respect to, the authorization of the issuance and sale by the Company of the
Notes and the authorization of the issuance and delivery of the Class A Bonds.
We have examined, among other things, the Registration Statement and the
Prospectus, and any amendment or supplement thereto, the corporate records of
the Company, the Indenture, the Supplemental Indenture creating the Notes, the
PSCO 1939 Mortgage and the supplemental indenture thereto (the "1939
Supplemental Mortgage") under which the Class A Bonds are being issued, the
proceedings before The Public Utilities Commission of the State of Colorado with
respect to the issuance and sale of the Notes and the issuance and delivery of
the Class A Bonds and such other proceedings, papers and documents as we have
deemed relevant for the purpose of rendering the opinions enumerated below. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies and the
authenticity of all such latter documents. We have relied as to various
questions of fact upon discussions with officers and representatives of the
Company and the representations and warranties of the Company contained in the
Agreement and upon the certificates of public officials and of officers of the
Company being delivered to you thereunder. With respect to the opinions
expressed in paragraphs (xii), (xiii) and (xiv) below, we have relied on
information obtained from public records and from the Company.
On the basis of the foregoing, and subject to the limitations and
qualifications set forth herein, it is our opinion that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Colorado
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
as amended or supplemented to the date hereof.
(ii) To the best of our knowledge, the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the business,
properties or operations of the Company and its subsidiaries
considered as one enterprise.
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<PAGE>
(iii)Each Significant Subsidiary of the Company (as defined in Rule 405(c)
of Regulation C under the 1933 Act), if any, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
the Prospectus, as amended or supplemented to the date hereof, and, to
the best of our knowledge, is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not have
a material adverse effect on the business, properties or operations of
the Company and its subsidiaries considered as one enterprise.
(iv) To the best of our knowledge, the Company is not in violation of its
charter or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of its
properties may be bound. The execution and delivery of the Agreement,
the Supplemental Indenture, the 1939 Supplemental Mortgage and the
consummation of the transactions contemplated therein and the
incurrence of the obligations therein contained will not conflict
with, or constitute a breach of, or default under, or (other than
under the Indenture and the 1939 Mortgage) result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to us and to
which the Company is a party or by which it may be bound or to which
any of its property or assets is subject, or any law, administrative
regulation or administrative or court order or decree known to us to
be applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the
Company; nor will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(v) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is in due and proper form and (assuming
the Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding mortgage of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by laws and principles of equity
affecting generally the enforcement of mortgagees' and other
creditors' rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture; provided, however, that such
state laws will not, in our opinion, render the remedies afforded by
the Indenture inadequate for the practical realization of the benefit
of the security provided thereby.
(vi) The Indenture is qualified under the Trust Indenture Act of 1939, as
amended.
(vii) The Notes are in due and proper form and the issuance and sale of the
Notes have been duly authorized by all necessary corporate action, and
when a Note has been duly executed and authenticated as specified in
the Indenture and the Company Order and Officer's Certificate (each as
defined in the Indenture) applicable to such Note and delivered
against payment of the consideration therefor determined in accordance
with the Agreement, such Note will be a legal, valid and binding
obligation of the Company enforceable (subject to the exceptions and
limitations referred to in paragraph (v) hereof) in accordance with
its terms and entitled to the benefits and security of the Indenture;
and, assuming that the Supplemental Indenture has been duly
transmitted to the appropriate public officials for recording and will
be duly recorded, such Note will be secured equally and ratably with
all other Notes and bonds outstanding under the Indenture.
(viii) The PSCO 1939 Mortgage has been duly and validly authorized, executed
and delivered by the Company and is in due and proper form and
(assuming the PSCO 1939 Mortgage has been duly authorized, executed
and delivered by the trustee thereunder) constitutes a legal, valid
and binding mortgage of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of
mortgagees'
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<PAGE>
and other creditors' rights, including without limitation bankruptcy
and insolvency laws and state laws which affect the enforcement of
certain remedial provisions of the PSCO 1939 Mortgage; provided,
however, that such state laws will not, in our opinion, render the
remedies afforded by the PSCO 1939 Mortgage inadequate for the
practical realization of the benefit of the security provided thereby.
(ix) The Class A Bonds are in due and proper form and the issuance and
delivery of the Class A Bonds have been duly authorized by all
necessary corporate action; and when (a) a Class A Bond has been duly
executed, authenticated and delivered to the Trustee as specified in
the PSCO 1939 Mortgage and the order of an officer of the Company
applicable to such Class A Bond and (b) the related Note has been duly
executed and authenticated as specified in the Indenture and the
Company Order and Officer's Certificate applicable to such Note and
delivered against payment of the consideration therefor determined in
accordance with the Agreement, such Class A Bond will be a legal,
valid and binding obligation of the Company enforceable (subject to
the exceptions and limitations referred to in paragraph (viii) hereof)
in accordance with its terms and entitled to the benefits and security
of the PSCO 1939 Mortgage; and, assuming that the 1939 Supplemental
Mortgage has been duly transmitted to the appropriate public officials
for recording and will be duly recorded, such Class A Bond will be
secured equally and ratably with all other bonds outstanding under the
PSCO 1939 Mortgage (except to the extent that any sinking,
amortization, improvement or other fund may afford additional security
for such bonds of any particular series).
(x) The Agreement has been duly authorized, executed and delivered by the
Company.
(xi) The issuance and sale of the Notes, and the issuance and delivery of
the Class A Bonds, have been duly authorized and approved by an order
of The Public Utilities Commission of the State of Colorado and such
order is final and in full force and effect on the date hereof, the
time for appeal therefrom or review thereof or intervention with
respect thereto having expired; no further approval, authorization,
consent or other order of any public board or body (other than in
connection or compliance with the provisions of the securities laws of
any jurisdiction) is legally required for the issuance and sale by the
Company of the Notes pursuant to the Agreement or for the issuance and
delivery of the Class A Bonds; and the Company is presently exempt
from all of the provisions of the Public Utility Holding Company Act
of 1935, as amended, except Section 9(a)(2) thereof.
xii) The Company has good title to the real properties specifically or
generally described or referred to in the Indenture and in the PSCO
1939 Mortgage as subject to the respective liens thereof (except such
real property as may have been sold, exchanged or otherwise disposed
of), subject only to (a) in the case of all such properties, the lien
of the PSCO 1939 Mortgage and "permitted encumbrances" (as defined in
the PSCO 1939 Mortgage) and (b) in the case of such properties which
are used or to be used in or in connection with the Electric Utility
Business (as defined in the Indenture) (whether or not such is the
sole use of such property) the lien of the Indenture and Permitted
Liens (as defined in the Indenture).
(xiii) The Indenture constitutes a mortgage lien on the properties
specifically or generally described or referred to therein as subject
to the lien thereof (except such properties as may have been sold,
exchanged or otherwise disposed of or released from the lien thereof
in accordance with the terms thereof), subject to no liens prior to
the lien of the Indenture other than Permitted Liens and the lien of
the PSCO 1939 Mortgage; and the Indenture by its terms effectively
subjects to the lien thereof all property (except property of the
kinds specifically excepted from the lien of the Indenture by the
terms thereof) acquired by the Company after the date of execution and
delivery of the Indenture and used or to be used in or in connection
with the Electric Utility Business, subject to Permitted Liens, the
lien of the PSCO 1939 Mortgage, any lien thereon existing at the time
of such acquisition and to any liens for unpaid portions of the
purchase money placed thereon at the time of such acquisition, and
also subject to the provisions of Article Thirteen of the
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<PAGE>
Indenture and to certain possible claims of a trustee in bankruptcy
and possible claims and taxes of the federal government.
(xiv) The PSCO 1939 Mortgage constitutes a first mortgage lien on the
properties specifically or generally described or referred to therein
as subject to the lien thereof, including the shares of stock pledged
thereunder (except such property as may have been sold, exchanged or
otherwise disposed of or released from the lien thereof in accordance
with the terms thereof), subject to no liens prior to the lien of the
PSCO 1939 Mortgage other than "permitted encumbrances"; and the PSCO
1939 Mortgage by its terms effectively subjects to the lien thereof
all property (except property of the kinds specifically excepted from
the lien of the PSCO 1939 Mortgage by the terms thereof) acquired by
the Company after the date of the execution and delivery of the PSCO
1939 Mortgage, subject to "permitted encumbrances", to any lien
thereon existing at the time of such acquisition and to any liens for
unpaid portions of the purchase money placed thereon at the time of
such acquisition, and also subject to the provisions of Article XI of
the PSCO 1939 Mortgage and to certain possible claims of a trustee in
bankruptcy and possible claims and taxes of the federal government.
(xv) The facsimile signature of a Senior Vice President or Vice President
of the Company in lieu of his manual signature on the Notes and the
Class A Bonds and the facsimile signature of the Secretary or an
Assistant Secretary of the Company attesting the corporate seal in
lieu of his manual signature on the Notes and the Class A Bonds have
been duly and properly authorized by the Board of Directors of the
Company, are not inconsistent with the provisions of the Restated
Articles of Incorporation, as amended, or By-Laws of the Company and
are valid and effective under the laws of the State of Colorado; and
the facsimile signatures of such officers on the Notes and the Class A
Bonds have the same legal effect as though they had manually signed
and attested the Notes and the Class A Bonds as such respective
officers.
(xvi) The statements in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, incorporated by reference into
the Prospectus, under the headings "Regulation and Rates" and
"Franchises" in Item 1. BUSINESS and under the heading "Character of
Ownership" in Item 2. Properties, and the statements in the
Prospectus, and any amendment or supplement thereto, under the caption
"Security" under "Description of the New Bonds" and "Description of
the 1939 Mortgage," insofar as they are, or refer to, statements of
law or legal conclusions, have been prepared or reviewed by us and are
correct in all material respects and fairly present the information
purported to be given. The Notes, the Indenture, the Class A Bonds and
the PSCO 1939 Mortgage conform as to legal matters to the descriptions
thereof contained in the Registration Statement and Prospectus, as
amended or supplemented to the date hereof.
(xvii) [Except to the extent set forth in the next sentence of this
paragraph (xvii),] the franchises held by the Company and its
subsidiaries, together with the applicable Certificates of Convenience
and Necessity issued by The Public Utilities Commission of the State
of Colorado and the Public Service Commission of Wyoming, give the
Company and such subsidiaries all necessary authority for the
maintenance and operation of their respective properties and business
as now conducted, and are free from burdensome restrictions or
conditions of an unusual character. [As disclosed in the Incorporated
Documents, the Company is currently providing gas and electric service
to one previously franchised municipality while a new franchise is
being negotiated.]
(xviii) The descriptions in the Registration Statement and the Prospectus,
as amended or supplemented to the date hereof, of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the information
purported to be given.
(xix) The Registration Statement is effective under the 1933 Act and, to the
best of our knowledge, no proceedings for a stop order have been
instituted or are pending or threatened under Section 8(d) of the 1933
Act; and, at the time the Registration Statement became effective and
at the date of
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the Agreement, the Registration Statement complied, and, at the date
hereof, the Prospectus, as it may have been amended or supplemented,
complies, as to form in all material respects with the requirements of
the 1933 Act and the applicable instructions, rules and regulations
thereunder, or pursuant to said instructions, rules and regulations
are deemed to have complied or to comply therewith, although we do not
express any opinion as to the financial statements (including the
notes thereto) or other financial or statistical data included or
incorporated by reference therein.
We do not know of any legal or governmental proceeding (pending or
threatened) required to be described in the Registration Statement or the
Prospectus, as amended or supplemented to the date hereof, which is not
described as required, nor of any contract or document of a character required
to be described in the Registration Statement or the Prospectus, as amended or
supplemented to the hereof, or to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
In connection with this opinion, we have participated in discussions with
officers and representatives of the Company, in certain of which your
representatives and counsel also participated and at which the affairs of the
Company and the contents of the Registration Statement and the Prospectus were
discussed. There is no assurance that all possible material facts as to the
Company were disclosed to us or that our familiarity with the Company or the
operations in which it is engaged is such that we have necessarily recognized
the materiality of such facts as were disclosed, and we have to a large extent
relied upon statements of officers and representatives of the Company as to the
significance of those facts disclosed to us. We are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus except to
the limited extent referred to in paragraphs (xvi) and (xviii) above. Subject to
the foregoing, and to the other limitations and qualifications expressed in this
letter, we may state that nothing has come to our attention that would lead us
to believe that the Registration Statement, when it became effective [or, if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by the Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, as the case may be,] or at the date of
the Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus at the date of the
Agreement or at the date hereof, [or, if the opinion is being delivered in
connection with the purchase of Notes from the Company by one or more Agents as
principal pursuant to Section 7(b) of the Agreement, at the date of any
agreement by such Agent or Agents to purchase Notes as principal and at the
Settlement Date with respect thereto, as the case may be,] included or includes
an 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; provided, that we do
not express any belief as to the financial statements (including the notes
thereto) or other financial or statistical data contained or incorporated by
reference in the Registration Statement or the Prospectus, or any amendment or
supplement thereto, as to any information contained therein furnished to the
Company in writing by any Agent expressly for use therein or as to the Statement
of Eligibility.
This opinion is limited to the laws of the State of New York and the State
of Colorado and the federal law of the United States of America. In addition, we
are not opining herein with respect to the securities or "blue sky" laws of any
state. Finally, this opinion speaks as of the date hereof and we undertake no
responsibility to advise you of any change in circumstances after the date
hereof.
First Trust of New York, National Association is hereby authorized to rely
upon this letter as if this letter were addressed to it. Brown & Wood LLP is
hereby authorized to rely upon this letter as to matters governed by the law of
the State of Colorado as if this letter were addressed to them. This letter is
not being delivered for the benefit of, nor may it be relied upon by, the
holders of the Notes or any other party to which it is not specifically
addressed or to which reliance has not expressly been permitted hereby.
Very truly yours,
B-5
<PAGE>
Appendix III
to
Distribution
Agreement
[LETTERHEAD OF BROWN & WOOD LLP]
Re: Public Service Company of Colorado
[Agents]
Ladies and Gentlemen:
We have acted as your counsel in connection with the transactions
contemplated by the Distribution Agreement, dated ______________ (the
"Agreement"), between you and Public Service Company of Colorado, a Colorado
corporation (the "Company"), in connection with the issuance and sale by the
Company of up to $250,000,000 aggregate principal amount of its Secured
Medium-Term Notes, Series B (being a series of First Collateral Trust Bonds)
(the "Notes"), being issued under its Indenture, dated as of October 1, 1993, to
First Trust of New York, National Association, as successor trustee to Morgan
Guaranty Trust Company of New York (formerly Guaranty Trust Company of New
York), and all indentures supplemental thereto, including the Supplemental
Indenture dated as of November 1, 1996 creating the Notes (the "Supplemental
Indenture") (said Indenture dated as of October 1, 1993 and all indentures
supplemental thereto being hereinafter collectively referred to as the
"Indenture").
We have examined such documents and records as we deemed appropriate,
including the following:
(1) copy, certified by the Secretary of State of the State of Colorado to
be a true and complete copy, of the Restated Articles of
Incorporation, as amended, and the Certificate of Correction of the
Company as on file in the office of the Secretary of State of the
State of Colorado;
(2) certificate of recent date of the Secretary of State of the State of
Colorado to the effect that the Company is in good standing;
(3) copy, certified by an Assistant Secretary of the Company to be a true
and correct copy, of the By-Laws of the Company;
(4) minute book records of the Company as furnished to us by the Company;
(5) executed counterpart of the Agreement;
(6) executed counterpart of the Indenture;
(7) copies of papers delivered by the Company to the Trustee under the
Indenture in connection with the authentication and delivery from time
to time of the Notes;
(8) a specimen Note in definitive fully registered form, certified by an
Assistant Secretary of the Company to be a true and correct specimen;
(9) executed counterparts of the Company's Indenture, dated as of December
1, 1939 (the "Original PSCO 1939 Mortgage"), to First Trust of New
York, National Association, as successor trustee to Morgan Guaranty
Trust Company of New York (formerly Guaranty Trust Company of New
York), and all indentures supplemental thereto, including the
supplemental indenture dated as of November 1, 1996 (the "PSCO 1939
Mortgage Supplemental Indenture") creating the Company's first
mortgage bonds to be made the basis of the authentication and delivery
of the Notes (the
C-1
<PAGE>
"Class A Bonds") (the Original PSCO 1939 Mortgage and all indentures
supplemental thereto being hereinafter called the "PSCO 1939
Mortgage");
(10) copies of papers delivered by the Company to the trustee under the
PSCO 1939 Mortgage in connection with the authentication and delivery
of the Class A Bonds;
(11) a specimen Class A Bond in definitive fully registered form, certified
by an Assistant Secretary of the Company to be a true and correct
specimen;
(12) copies, certified by an Assistant Secretary of the Company to be true
and correct copies, of certain resolutions adopted by the Board of
Directors of the Company [and by the Executive Committee of the Board
of Directors of the Company] relating to the authorization, execution
and delivery of the Supplemental Indenture, the authorization,
execution and delivery of the PSCO 1939 Mortgage Supplemental
Indenture, with respect to the authorization, issuance and sale of the
Notes, including the Agreement, and with respect to the authorization,
issuance and delivery of the Class A Bonds;
(13) executed copies of the Company's registration statement on Form S-3
(Registration File No. 333-_____) filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "1933 Act"), relating to the
registration thereunder of first collateral trust bonds having an
aggregate principal amount not exceeding $400,000,000, including the
Notes. The terms "Registration Statement" and "Prospectus" are used
herein with the meanings ascribed thereto in the Agreement;
(14) evidence of the effectiveness of the Registration Statement under the
1933 Act; and
(15) a copy, certified by the Secretary of The Public Utilities Commission
of the State of Colorado (the "Colorado Commission") to be a true and
complete copy, of the Decision and Order of the Colorado Commission
adopted October 16, 1996, which authorizes the issuance and sale of up
to $650,000,000 aggregate principal amount of the Company's first
collateral trust bonds, including the Notes, and the same principal
amount of Class A Bonds.
In rendering our opinion, we have assumed, without any independent
investigation or verification, the authenticity of all documents submitted
to us as originals and the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies,
and the authenticity of all such latter documents.
Based upon the foregoing, and subject to the assumptions set forth
herein, we are of the opinion that:
(a) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Colorado with corporate power and authority to own, lease and
operate its properties and to conduct its business as described
in the Prospectus, as amended or supplemented to the date hereof.
(b) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming the Indenture has been
duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding mortgage of the Company,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by laws and principles of equity affecting
generally the enforcement of mortgagees' and other creditors'
rights, including without limitation bankruptcy and insolvency
laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture.
(c) The Indenture is qualified under the Trust Indenture Act of 1939,
as amended.
C-2
<PAGE>
(d) The Notes are in due and proper form and the issuance and sale of
the Notes by the Company have been duly authorized by all
necessary corporate action, and when a Note has been duly
executed and authenticated as specified in the Indenture and the
Company Order and Officer's Certificate (each as defined in the
Indenture) applicable to such Note and delivered against payment
of the consideration therefor determined in accordance with the
Agreement, such Note will be a legal, valid and binding
obligation of the Company enforceable (subject to the exceptions
and limitations referred to in paragraph (b) hereof) in
accordance with its terms and entitled to the benefits and
security of the Indenture; and such Note will be secured equally
and ratably with all other Notes and bonds outstanding under the
Indenture.
(e) The PSCO 1939 Mortgage has been duly and validly authorized,
executed and delivered by the Company and (assuming the PSCO 1939
Mortgage has been duly authorized, executed and delivered by the
trustee thereunder) constitutes a legal, valid and binding
mortgage of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of
mortgagees' and other creditors' rights, including without
limitation bankruptcy and insolvency laws and state laws which
affect the enforcement of certain remedial provisions of the PSCO
1939 Mortgage.
(f) The Class A Bonds are in due and proper form and the issuance and
delivery of the Class A Bonds by the Company have been duly
authorized by all necessary corporate action; and when (a) a
Class A Bond has been duly executed, authenticated and delivered
to the Trustee as specified in the PSCO 1939 Mortgage and the
order of an officer of the Company applicable to such Class A
Bond and (b) the related Note has been duly executed and
authenticated as specified in the Indenture and the Company Order
and Officer's Certificate applicable to such Note and delivered
against payment of the consideration therefor determined in
accordance with the Agreement, such Class A Bond will be a legal,
valid and binding obligation of the Company enforceable (subject
to the exceptions and limitations referred to in paragraph (e)
hereof) in accordance with its terms and entitled to the benefits
and security of the PSCO 1939 Mortgage; and such Class A Bond
will be secured equally and ratably with all other bonds
outstanding under the PSCO 1939 Mortgage (except to the extent
that any sinking, amortization, improvement or other fund may
afford additional security for such bonds of any particular
series).
(g) The Agreement has been duly authorized, executed and delivered by
the Company.
(h) The issuance and sale of the Notes, and the issuance and delivery
of the Class A Bonds, have been duly authorized and approved by
the Colorado Commission; no further approval, authorization,
consent or other order of any public board or body (other than in
connection or compliance with the provisions of the securities
laws of any jurisdiction) is legally required for the issuance
and sale by the Company of the Notes pursuant to the Agreement or
for the issuance and delivery of the Class A Bonds; and the
Company is presently exempt from all of the provisions of the
Public Utility Holding Company Act of 1935, as amended, except
Section 9(a)(2) thereof.
(i) The Notes, the Indenture, the Class A Bonds and the PSCO 1939
Mortgage conform as to legal matters to the description of the
terms thereof contained in the Registration Statement and the
Prospectus, as amended or supplemented to the date hereof.
(j) The Registration Statement is effective under the 1933 Act and,
to the best of our knowledge, no proceedings for a stop order
have been instituted or are pending or threatened under Section
8(d) of the 1933 Act; and, at the time the Registration Statement
became effective and at the date of the Agreement, the
Registration Statement complied,
C-3
<PAGE>
and, at the date hereof, the Prospectus, as it may have been
amended or supplemented, complies, as to form in all material
respects with the requirements of the 1933 Act and the applicable
instructions, rules and regulations thereunder, or pursuant to
said instructions, rules and regulations are deemed to have
complied or to comply therewith, although we do not express any
opinion as to the financial statements (including the notes
thereto) or other financial or statistical data included or
incorporated by reference therein.
We have endeavored to see that the Registration Statement and the
Prospectus, and any amendment or supplement thereto, comply with the 1933 Act
and the rules and regulations of the Commission thereunder relating to
registration statements on Form S-3 and related prospectuses, but we have
participated to a limited extent only in the preparation of the documents
incorporated by reference in the Registration Statement and Prospectus and we
cannot, of course, make any representation to you as to the accuracy or
completeness of statements of fact contained in the Registration Statement or
Prospectus, including the documents incorporated therein by reference. Nothing,
however, has come to our attention that would lead us to believe that the
Registration Statement, at the time it became effective [or, if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became effective or at
the time of the most recent such filing, as the case may be] or at the date of
the Agreement, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus at the date of the
Agreement or at the date hereof [or, if the opinion is being delivered in
connection with the purchase of Notes from the Company by one or more Agents as
principal pursuant to Section 7(b) of the Agreement, at the date of any
agreement by such Agent or Agents to purchase Notes as principal and at the
Settlement Date with respect thereto, as the case may be], included or includes
an 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; provided that we do
not express any belief as to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or as to
the Statement of Eligibility.
In giving this opinion we have relied as to all matters governed by
Colorado law upon the opinion of even date herewith rendered to you by LeBoeuf,
Lamb, Greene & MacRae, L.L.P. relating to the Notes. We express no opinion upon
matters regarding titles to properties of the Company, the lien of the Indenture
or the filing or the recordation thereof, the lien of the PSCO 1939 Mortgage or
the filing or the recordation thereof, or of the validity and sufficiency of the
franchises, licenses and permits of the Company in carrying on its business.
Very truly yours,
C-4
<PAGE>
Appendix IV
to
Distribution
Agreement
CONTENTS OF LETTER OF ARTHUR ANDERSEN LLP
The letter of Arthur Andersen LLP will confirm that they are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations, and will state in effect that:
(a) in their opinion, the consolidated financial statements and supporting
financial schedules audited by them and incorporated by reference in
the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
1934 Act and the applicable respective published rules and regulations
thereunder;
(b) on the basis of a limited review (but not an audit in accordance with
generally accepted auditing standards) of the unaudited consolidated
condensed financial statements, if any, included in the documents
incorporated by reference in the Prospectus and of the latest
available interim consolidated financial statements of the Company, a
reading of all recent minutes of meetings of the Board of Directors of
the Company and the Executive and Audit Committees thereof (or for
meetings for which minutes had not yet been prepared, discussions with
a Company officer of the actions taken thereat), of the shareholders
of the Company and of the shareholders and Boards of Directors of the
Company's consolidated subsidiaries, and discussions with officers of
the Company responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention which caused them to believe that:
(i) the unaudited consolidated condensed financial statements, if
any, included in the documents incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act and the
related published 1934 Act Regulations, or said consolidated
condensed financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements incorporated by reference therein,
(ii) the unaudited income statement and balance sheet amounts, if any,
included in the Prospectus were not determined on a basis
substantially consistent with the audited financial statements
included therein, or
(iii) (A) there was any change in the consolidated capital stock,
other than ongoing sales under the Company's Automatic
Dividend Reinvestment and Common Stock Purchase Plan, or any
increase in the long-term debt of the Company and its
consolidated subsidiaries, or any decrease in consolidated
net assets, at a specified date not more than three days
prior to the date of such letter as compared with the
corresponding amounts shown in the most recent consolidated
balance sheet or condensed balance sheet incorporated by
reference in the Prospectus, or
(B) there was any decrease in consolidated operating revenues or
net income for the period from the date of the latest
consolidated balance sheet or condensed balance sheet
incorporated by reference in the Prospectus to a specified
date not
D-1
<PAGE>
later than three days prior to the date of such letter as
compared to such amounts for the corresponding period during
the previous year,
except in all instances for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are
disclosed in such letter;
(c) they have carried out certain procedures and made certain findings,
specified in such letter, with respect to certain amounts and
percentages included in the Prospectus and the documents
incorporated by reference in the Prospectus and such other items as
the Agents may reasonably request.
D-2
<PAGE>
APPENDIX V
____________________, 19__
[Agents]
Re: Public Service Company of Colorado Secured Medium-Term Notes
Dear Sirs:
We have delivered an opinion to you dated ______________ as counsel to
Public Service Company of Colorado (the "Company"), pursuant to Section 5(b) of
the Distribution Agreement, dated as of ____________, among the Company and you,
as Agents. You may continue to rely upon such opinion as if it were dated as of
this date except that all statements and opinions contained therein shall be
deemed to relate to the Registration Statement and Prospectus as amended and
supplemented to this date.
This letter is delivered to you pursuant to Section 6(b) of the
Distribution Agreement.
Very truly yours,
V-1
Exhibit 4(a)(3)
================================================================================
SUPPLEMENTAL INDENTURE
Dated as of November 1, 1996
________________
PUBLIC SERVICE COMPANY OF COLORADO
TO
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
As Trustee
_________________
Creating an Issue of First Mortgage Bonds,
Collateral Series D
_______________
(Supplemental to Indenture dated as of December 1, 1939, as amended)
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of November 1, 1996, between PUBLIC
SERVICE COMPANY OF COLORADO, a corporation organized and existing under the laws
of the State of Colorado (the "Company"), party of the first part, and FIRST
TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking association, as
successor trustee (the "Trustee") to Morgan Guaranty Trust Company of New York
(formerly Guaranty Trust Company of New York), party of the second part.
WHEREAS, the Company heretofore executed and delivered to the
Trustee its Indenture, dated as of December 1, 1939 (the "Principal Indenture"),
to secure its First Mortgage Bonds from time to time issued thereunder; and
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Supplemental Indentures referred to in Schedule A hereto for certain
purposes, including the creation of series of bonds, the subjection to the lien
of the Principal Indenture of property acquired after the execution and delivery
thereof, the amendment of certain provisions of the Principal Indenture and the
appointment of the successor Trustee; and
WHEREAS, the Principal Indenture as supplemented and amended by all
Supplemental Indentures heretofore executed by the Company and the Trustee is
hereinafter referred to as the "Indenture," and, unless the context requires
otherwise, references herein to Articles and Sections of the Indenture shall be
to Articles and Sections of the Principal Indenture as so amended; and
WHEREAS, the Company proposes to create a new series of First
Mortgage Bonds to be designated as First Mortgage Bonds, Collateral Series D
(the "Collateral Series D Bonds"), to be issued and delivered from time to time
to the trustee under the 1993 Mortgage (as hereinafter defined) as the basis for
the authentication and delivery under the 1993 Mortgage of a series of
securities constituting medium-term notes, all as hereinafter provided, and to
vary in certain respects the covenants and provisions contained in Article V of
the Indenture, to the extent that such covenants and provisions apply to the
Collateral Series D Bonds; and
WHEREAS, the Company, pursuant to the provisions of the Indenture,
has, by appropriate corporate action, duly resolved and determined to execute
this Supplemental Indenture for the purpose of providing for the creation of the
Collateral Series D Bonds and of specifying the form, provisions and particulars
thereof, as in the Indenture provided or permitted and of giving to the
Collateral Series D Bonds the protection and security of the Indenture; and
[WHEREAS, the Company has acquired the additional property
hereinafter described, and the Company desires that such additional property so
acquired be specifically subjected to the lien of the Indenture; and]
WHEREAS, the Company represents that all acts and proceedings
required by law and by the charter and by-laws of the Company, including all
action requisite on the part of its shareholders, directors and officers,
necessary to make the Collateral Series D Bonds, when executed by the Company,
authenticated and delivered by the Trustee and duly issued, the valid, binding
and legal obligations of the Company, and to constitute the Principal Indenture
and all indentures supplemental thereto, including this Supplemental Indenture,
valid, binding and legal instruments for the security of the bonds of all
series, including the Collateral Series D Bonds, in accordance with the terms of
such bonds and such instruments, have been done, performed and fulfilled, and
the execution and delivery hereof have been in all respects duly authorized;
<PAGE>
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That Public Service Company of Colorado, the Company named in the
Indenture, in consideration of the premises and of One Dollar to it duly paid by
the Trustee at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and in pursuance of the direction and
authority of the Board of Directors of the Company given at a meeting thereof
duly called and held, and in order to create the Collateral Series D Bonds and
to specify the form, terms and provisions thereof, [and to make definite and
certain the lien of the Indenture upon the premises hereinafter described and to
subject said premises directly to the lien of the Indenture,] and to secure the
payment of the principal of and premium, if any, and interest, if any, on all
bonds from time to time outstanding under the Indenture, including the
Collateral Series D Bonds, according to the terms of said bonds, and to secure
the performance and observance of all of the covenants and conditions contained
in the Indenture, has executed and delivered this Supplemental Indenture [and
has granted, bargained, sold, warranted, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and confirmed, and by these
presents does grant, bargain, sell, warrant, alien, remise, release, convey,
assign, transfer, mortgage, pledge, set over and confirm unto First Trust of New
York, National Association, as Trustee, and its successor or successors in the
trust and its and their assigns forever, the property described in Schedule B
hereto (which is described in such manner as to fall within and under the
headings or parts or classifications set forth in the Granting Clauses of the
Principal Indenture)];
TO HAVE AND TO HOLD the same and all and singular the properties,
rights, privileges and franchises described in the Principal Indenture and in
the several Supplemental Indentures hereinabove referred to [and in this
Supplemental Indenture] and owned by the Company on the date of the execution
and delivery hereof (other than property of a character expressly excepted from
the lien of the Indenture as therein set forth) unto the Trustee and its
successor or successors and assigns forever;
SUBJECT, HOWEVER, to permitted encumbrances as defined in the
Indenture;
IN TRUST, NEVERTHELESS, upon the terms and trusts set forth in the
Indenture, for the equal and proportionate benefit and security of all present
and future holders of the bonds and coupons issued and to be issued under the
Indenture, including the Collateral Series D Bonds, without preference, priority
or distinction as to lien (except as any sinking, amortization, improvement or
other fund established in accordance with the provisions of the Indenture or any
indenture supplemental thereto may afford additional security for the bonds of
any particular series) of any of said bonds over any others thereof by reason of
series, priority in the time of the issue or negotiation thereof, or otherwise
howsoever, except as provided in Section 2 of Article IV of the Indenture.
-2-
<PAGE>
ARTICLE ONE
CREATION AND DESCRIPTION OF THE COLLATERAL SERIES D BONDS
SECTION 1. A new series of bonds to be issued from time to time
under and secured by the Indenture is hereby created, the bonds of such new
series to be designated First Mortgage Bonds, Collateral Series D. The
Collateral Series D Bonds shall be limited to an aggregate principal amount of
Two Hundred Fifty Million dollars ($250,000,000), excluding any Collateral
Series D Bonds which may be authenticated and exchanged for or in lieu of or in
substitution for or on transfer of other Collateral Series D Bonds pursuant to
any provisions of the Indenture. The Collateral Series D Bonds shall not bear
interest and each Collateral Series D Bond shall (a) be issued in such principal
amount, (b) mature on such date not less than nine months nor more than thirty
years from its Original Issue Date (as hereinafter defined), and (c) have such
other terms and conditions as shall not be inconsistent with the provisions of
the Indenture, all as shall be specified by the Company in a certificate,
executed by the President, any Vice President, the Treasurer or any Assistant
Treasurer of the Company, delivered to the Trustee relating to such Collateral
Series D Bond and referring to this Supplemental Indenture (each such
certificate being deemed to constitute a part of this Supplemental Indenture and
being hereinafter sometimes called an "Issuance Certificate"), such
specification by such an officer of the Company in an Issuance Certificate
having been heretofore authorized in a resolution of the Board of Directors of
the Company.
The principal of each Collateral Series D Bond shall be payable,
upon presentation thereof, at the office or agency of the Company in the city in
which the principal corporate trust office of the 1993 Mortgage Trustee (as
hereinafter defined) is located, in any coin or currency of the United States of
America which at the time of payment shall be legal tender for the payment of
public and private debts.
The Collateral Series D Bonds shall be issued and delivered from
time to time by the Company to First Trust of New York, National Association, as
successor trustee under the Indenture, dated as of October 1, 1993, as
supplemented (the "1993 Mortgage"), of the Company to such trustee (the "1993
Mortgage Trustee"), as the basis for the authentication and delivery under the
1993 Mortgage of a series of securities. As provided in the 1993 Mortgage, the
Collateral Series D Bonds will be registered in the name of the 1993 Mortgage
Trustee or its nominee and will be owned and held by the 1993 Mortgage Trustee,
subject to the provisions of the 1993 Mortgage, for the benefit of the holders
of all securities from time to time outstanding under the 1993 Mortgage, and the
Company shall have no interest therein.
Any payment by the Company under the 1993 Mortgage of the principal
of any securities which shall have been authenticated and delivered under the
1993 Mortgage on the basis of the issuance and delivery to the 1993 Mortgage
Trustee of Collateral Series D Bonds (other than by the application of the
proceeds of a payment in respect of such Collateral Series D Bonds) shall, to
the extent thereof, be deemed to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal of such Collateral Series D
Bonds which is then due.
The Trustee may conclusively presume that the obligation of the
Company to pay the principal of any Collateral Series D Bonds as the same shall
become due and payable shall
-3-
<PAGE>
have been fully satisfied and discharged unless and until it shall have received
a written notice from the 1993 Mortgage Trustee, signed by an authorized officer
thereof, stating that the principal of specified Collateral Series D Bonds has
become due and payable and has not been fully paid, and specifying the amount of
funds required to make such payment.
Each Collateral Series D Bond shall be dated as of the date of its
authentication.
The Collateral Series D Bonds shall be issued as fully registered
bonds only, in denominations of $1,000 and integral multiples thereof.
The Collateral Series D Bonds shall be registerable and exchangeable
at the office or agency of the Company in the city in which the principal
corporate trust office of the 1993 Mortgage Trustee is located, in the manner
and upon the terms set forth in Section 5 of Article II of the Indenture;
provided, however, that the Collateral Series D Bonds shall not be transferrable
except to a successor trustee under the 1993 Mortgage. No service charge shall
be made for any exchange or transfer of any Collateral Series D Bond.
If and to the extent necessary to eliminate any apparent
inconsistency between any provision of this Supplemental Indenture and any
provision of the Indenture all Collateral Series D Bonds having the same
Original Issue Date, Stated Maturity, interest rate, and other terms and
conditions shall be deemed to be a separate series of bonds, and such Original
Issue Date, Stated Maturity, interest rate, if any, and other terms and
conditions shall be deemed to be a part of the designation of such series.
As used herein, the term "Original Issue Date" shall mean, with
respect to any Collateral Series D Bond, the date of authentication and delivery
hereunder of such Collateral Series D Bond, or, in the case of any particular
Collateral Series D Bond which has been authenticated and delivered upon the
registration of transfer or exchange of, or in substitution for, another
Collateral Series D Bond, the date of the original authentication and delivery
hereunder of the first Collateral Series D Bond authenticated and delivered
hereunder representing all or a portion of the same obligation as that evidenced
by such particular Collateral Series D Bond; the term "Stated Maturity" shall
mean, with respect to any Collateral Series D Bond, the date on which the
principal of such Collateral Series D Bond is stated to be due and payable
(without regard to any provision for acceleration, redemption or similar
provisions); and the term "Maturity" shall mean, with respect to any Collateral
Series D Bond, the date on which the principal of such Collateral Series D Bond
becomes due and payable, whether at Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
SECTION 2. The text of the Collateral Series D Bonds shall be
substantially in the form attached hereto as Exhibit A.
SECTION 3. The Collateral Series D Bonds may be executed by the
Company and delivered to the Trustee and, upon compliance with all applicable
provisions and requirements of the Indenture in respect thereof, shall be
authenticated by the Trustee and delivered (without awaiting the filing or
recording of this Supplemental Indenture), from time to time, in accordance with
the written order or orders of the Company.
-4-
<PAGE>
ARTICLE TWO
REDEMPTION OF THE COLLATERAL SERIES D BONDS
SECTION 1. Each Collateral Series D Bond shall be redeemable at the
option of the Company in whole at any time, or in part from time to time, prior
to Stated Maturity, at a redemption price equal to 100% of the principal amount
thereof to be redeemed.
SECTION 2. The provisions of Sections 3, 4, 5, 6 and 7 of Article V
of the Indenture shall be applicable to the Collateral Series D Bonds, except
that (a) no publication of notice of redemption of the Collateral Series D Bonds
shall be required and (b) if less than all the Collateral Series D Bonds are to
be redeemed, the Collateral Series D Bonds to be redeemed shall be selected from
the maturities, and in the principal amounts, designated to the Trustee by the
Company, and except as such provisions may otherwise be inconsistent with the
provisions of this Article Two.
SECTION 3. The holder of each and every Collateral Series D Bond
issued hereunder hereby agrees to accept payment thereof prior to Stated
Maturity on the terms and conditions provided for in this Article Two.
ARTICLE THREE.
ACKNOWLEDGMENT OF RIGHT TO VOTE
OR CONSENT WITH RESPECT TO
CERTAIN AMENDMENTS TO INDENTURE
The Company hereby acknowledges the right of the holders of the
Collateral Series D Bonds to vote or consent with respect to any or all of the
modifications to the Indenture referred to in Article Three of the Supplemental
Indenture, dated as of March 1, 1980, irrespective of the fact that the Bonds of
the Second 1987 Series are no longer outstanding; provided, however, that such
acknowledgment shall not impair (a) the right of the Company to make such
modifications without the consent or other action of the holders of the Bonds of
the 2020 Series or the bonds of any other series subsequently created under the
Indenture with respect to which the Company has expressly reserved such right or
(b) the right of the Company to reserve the right to make such modifications
without the consent or other action of the holders of bonds of one or more, or
any or all, series created subsequent to the creation of the Collateral Series D
Bonds.
ARTICLE FOUR
THE TRUSTEE
The Trustee accepts the trusts created by this Supplemental
Indenture upon the terms and conditions set forth in the Indenture and this
Supplemental Indenture. The recitals in this Supplemental Indenture are made by
the Company only and not by the Trustee. Each and every term and condition
contained in Article XII of the Indenture shall apply to this
-5-
<PAGE>
Supplemental Indenture with the same force and effect as if the same were herein
set forth in full, with such omissions, variations and modifications thereof as
may be appropriate to make the same conform to this Supplemental Indenture.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 1. Subject to the variations contained in Article Two of
this Supplemental Indenture, the Indenture is in all respects ratified and
confirmed and the Principal Indenture, this Supplemental Indenture and all other
indentures supplemental to the Principal Indenture shall be read, taken and
construed as one and the same instrument. Neither the execution of this
Supplemental Indenture nor anything herein contained shall be construed to
impair the lien of the Indenture on any of the properties subject thereto, and
such lien shall remain in full force and effect as security for all bonds now
outstanding or hereafter issued under the Indenture.
All covenants and provisions of the Indenture shall continue in full
force and effect and this Supplemental Indenture shall form part of the
Indenture.
SECTION 2. If the date for making any payment or the last date for
performance of any act or the exercising of any right, as provided in this
Supplemental Indenture, shall not be a Business Day (as defined in the 1993
Mortgage), such payment may be made or act performed or right exercised on the
next succeeding Business Day with the same force and effect as if done on the
nominal date provided in this Supplemental Indenture.
SECTION 3. The terms defined in the Indenture shall, for all
purposes of this Supplemental Indenture, have the meaning specified in the
Indenture except as set forth in Section 4 of this Article or otherwise set
forth in this Supplemental Indenture or unless the context clearly indicates
some other meaning to be intended.
SECTION 4. Any term defined in Section 303 of the Trust Indenture
Act of 1939, as amended, and not otherwise defined in the Indenture shall, with
respect to this Supplemental Indenture and the Collateral Series D Bonds, have
the meaning assigned to such term in Section 303 as in force on the date of the
execution of this Supplemental Indenture.
SECTION 5. This Supplemental Indenture may be executed in any number
of counterparts, and all of said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Public Service Company of Colorado, party hereto
of the first part, has caused its corporate name to be hereunto affixed, and
this instrument to be signed by its President or any Vice President, and its
corporate seal to be hereunto affixed and attested by its Secretary or an
Assistant Secretary for and in its behalf; and First Trust of New York, National
Association, the party hereto of the second part, in evidence of its acceptance
of the trust hereby created, has caused its corporate name to be hereunto
affixed, and this instrument to
-6-
<PAGE>
be signed and its corporate seal to be affixed by one of its Vice Presidents and
attested by one of its Assistant Secretaries, for and in its behalf, all as of
the day and year first above written.
PUBLIC SERVICE COMPANY OF COLORADO
By:________________________________
[Name]
[Title]
ATTEST:___________________________
[Name]
[Assistant Secretary]
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By:________________________________
[Name]
Vice President
ATTEST:________________________
[Name]
Assistant Secretary
-7-
<PAGE>
STATE OF COLORADO )
) ss.:
CITY AND COUNTY OF DENVER )
On this _____ day of ______, before me, ______________, a duly
authorized Notary Public in and for said City and County in the State aforesaid,
personally appeared __________ and _______________, to me known to be a
_________________________ and a __________________, respectively, of PUBLIC
SERVICE COMPANY OF COLORADO, a corporation organized and existing under the laws
of the State of Colorado, one of the corporations that executed the within and
foregoing instrument; and the said __________ and _____________, severally,
acknowledged the said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that they were authorized to execute said instrument and that the seal
affixed thereto is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
__________________________________
Notary Public
-8-
<PAGE>
STATE OF NEW YORK )
) ss.:
CITY AND COUNTY OF NEW YORK )
On this ____ day of ____, before me, _________________, a duly
authorized Notary Public in and for said City and County in the State aforesaid,
personally appeared ______________ and _____________, to me known to be a
_________________ and an __________________, respectively, of First TRUST OF NEW
YORK, National Association, a national banking association, one of the
corporations that executed the within and foregoing instrument; and the said
________________ and ______________, severally, acknowledged the said instrument
to be the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that they were authorized to
execute said instrument and that the seal affixed thereto is the corporate seal
of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
______________________________________
Notary Public
-9-
<PAGE>
EXHIBIT A
FORM OF COLLATERAL SERIES D BOND
This bond is not transferable except to a successor trustee under the
Indenture, dated as of October 1, 1993, as supplemented, between Public Service
Company of Colorado and First Trust of New York, National Association, as
successor trustee thereunder.
PUBLIC SERVICE COMPANY OF COLORADO
FIRST MORTGAGE BOND,
CoLLATERAL SERIES D
REGISTERED REGISTERED
No.................. $..................
Original Issue Date:
Stated Maturity:
FOR VALUE RECEIVED, PUBLIC SERVICE COMPANY OF COLORADO, a corporation
organized and existing under the laws of the State of Colorado (hereinafter
sometimes called the "Company"), promises to pay to First Trust of New York,
National Association, as successor trustee (the "1993 Mortgage Trustee") under
the Indenture, dated as of October 1, 1993 (the "1993 Mortgage"), of the
Company, or registered assigns,
Dollars on the Stated Maturity specified above (unless this bond shall then be
deemed to have been paid in accordance with the provisions of the Indenture
referred to below) at the office or agency of the Company in the city in which
the principal corporate trust office of the 1993 Mortgage Trustee is located.
This bond shall not bear interest. The principal of this bond shall be payable
in any coin or currency of the United States of America which at the time of
payment shall be legal tender for the payment of public and private debts.
Any payment by the Company under the 1993 Mortgage of the principal of
securities which shall have been authenticated and delivered under the 1993
Mortgage on the basis of the issuance and delivery to the 1993 Mortgage Trustee
of this bond (the "1993 Mortgage Securities") (other than by the application of
the proceeds of a payment in respect of this bond) shall, to the extent thereof,
be deemed to satisfy and discharge the obligation of the Company, if any, to
make a payment of principal of this bond which is then due.
A-1
<PAGE>
This bond is one of an issue of bonds of the Company, issued and to be
issued in one or more series under and equally and ratably secured (except as
any sinking, amortization, improvement or other fund, established in accordance
with the provisions of the indenture hereinafter mentioned, may afford
additional security for the bonds of any particular series) by a certain
indenture, dated as of December 1, 1939, made by the Company to First Trust of
New York, National Association as successor trustee (hereinafter called the
"Trustee"), to Morgan Guaranty Trust Company of New York (formerly Guaranty
Trust Company of New York), as amended and supplemented by several indentures
supplemental thereto, including the Supplemental Indenture dated as of November
1, 1996 (said Indenture as amended and supplemented by said indentures
supplemental thereto being hereinafter called the "Indenture"), to which
Indenture reference is hereby made for a description of the property mortgaged,
the nature and extent of the security, the rights and limitations of rights of
the Company, the Trustee, and the holders of said bonds, under the Indenture,
and the terms and conditions upon which said bonds are secured, to all of the
provisions of which Indenture and of all indentures supplemental thereto in
respect of such security, including the provisions of the Indenture permitting
the issue of bonds of any series for property which, under the restrictions and
limitations therein specified, may be subject to liens prior to the lien of the
Indenture, the holder, by accepting this bond, assents. To the extent permitted
by and as provided in the Indenture, the rights and obligations of the Company
and of the holders of said bonds (including those pertaining to any sinking or
other fund) may be changed and modified, with the consent of the Company, by the
holders of at least 75% in aggregate principal amount of the bonds then
outstanding (excluding bonds disqualified from voting by reason of the Company's
interest therein as provided in the Indenture); provided, however, that without
the consent of the holder hereof no such modification or alteration shall be
made which will extend the time of payment of the principal of this bond or
reduce the principal amount hereof or effect any other modification of the terms
of payment of such principal or will reduce the percentage of bonds required for
the aforesaid actions under the Indenture. The Company has reserved the right to
amend the Indenture without any consent or other action by holders of any series
of bonds created after October 31, 1975 (including this series) so as to change
75% in the foregoing sentence to 60% and to change certain procedures relating
to bondholders' meetings. This bond is one of a series of bonds designated as
the First Mortgage Bonds, Collateral Series D, of the Company.
This bond shall be redeemable at the option of the Company in whole at
any time, or in part from time to time, prior to the Stated Maturity specified
above, at a redemption price equal to 100% of the principal amount thereof to be
redeemed.
The principal of this bond may be declared or may become due before the
Stated Maturity specified above, on the conditions, in the manner and at the
times set forth in the Indenture, upon the happening of an event of default as
therein provided.
This bond is not transferable except to a successor trustee under the
1993 Mortgage, any such transfer to be made at the office or agency of the
Company in the city in which the principal corporate trust office of the 1993
Mortgage Trustee is located, upon surrender and cancellation of this bond, and
thereupon a new bond of this series of a like principal amount and having the
same Original Issue Date, Stated Maturity and other terms and conditions, will
be issued to the transferee in exchange therefor, as provided in the Indenture.
The Company, the Trustee, any paying agent and any registrar may deem and treat
the person in whose name this bond is registered as the absolute owner hereof
for the purpose of receiving payment and for all other
A-2
<PAGE>
purposes. This bond, alone or with other bonds of this series, may in like
manner be exchanged at such office or agency for one or more new bonds of this
series of the same aggregate principal amount, and having the same Original
Issue Date, Stated Maturity, and other terms and conditions, all as provided in
the Indenture. No service charge shall be made to any holder of any bond of this
series for any exchange or transfer of bonds.
No recourse under or upon any covenant or obligation of the Indenture,
or of any bonds thereby secured, or for any claim based thereon, or otherwise in
any manner in respect thereof, shall be had against any incorporator, subscriber
to the capital stock, shareholder, officer or director, as such, of the Company,
whether former, present or future, either directly, or indirectly through the
Company or the Trustee, by the enforcement of any subscription to capital stock,
assessment or otherwise, or by any legal or equitable proceeding by virtue of
any statute or otherwise (including, without limiting the generality of the
foregoing, any proceeding to enforce any claimed liability of shareholders of
the Company based upon any theory of disregarding the corporate entity of the
Company or upon any theory that the Company was acting as the agent or
instrumentality of the shareholders), any and all such liability of
incorporators, shareholders, subscribers, officers and directors, as such, being
released by the holder hereof, by the acceptance of this bond, and being
likewise waived and released by the terms of the Indenture under which this bond
is issued.
This bond shall not be valid or become obligatory for any purpose until
the certificate of authentication endorsed hereon shall have been signed by
First Trust of New York, National Association, or its successor, as Trustee
under the Indenture.
A-3
<PAGE>
IN WITNESS WHEREOF, Public Service Company of Colorado has caused this
bond to be signed in its name by the facsimile signature of a Senior Vice
President and its corporate seal to be imprinted hereon and attested by the
facsimile signature of its Secretary.
Dated: PUBLIC SERVICE COMPANY OF COLORADO
By:_______________________________
Senior Vice President
ATTEST:________________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the securities of the Series designated therein referred
to in the within-mentioned Supplemental Indenture.
Dated: FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
AS TRUSTEE
By:_______________________________
Authorized Officer
A-4
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
SUPPLEMENTAL INDENTURES
Date of Principal
Supplemental Principal Amount
Indenture Series of Bonds Amount Issued Outstanding
--------- --------------- ------------- -----------
<S> <C> <C> <C>
March 14, 1941 None -- --
May 14, 1941 None -- --
April 28, 1942 None -- --
April 14, 1943 None -- --
April 27, 1944 None -- --
April 18, 1945 None -- --
April 23, 1946 None -- --
April 9, 1947 None -- --
June 1, 1947* 2-7/8% Series due 1977 $ 40,000,000 None
April 1, 1948 None -- --
May 20, 1948 None -- --
October 1, 1948 3-1/8% Series due 1978 10,000,000 None
April 20, 1949 None -- --
April 24, 1950 None -- --
April 18, 1951 None -- --
October 1, 1951 3-1/4% Series due 1981 15,000,000 None
April 21, 1952 None -- --
December 1, 1952 None -- --
April 15, 1953 None -- --
April 19, 1954 None -- --
October 1, 1954* 3-1/8% Series due 1984 20,000,000 None
April 18, 1955 None -- --
April 24, 1956 None -- --
May 1, 1957* 4-3/8% Series due 1987 30,000,000 None
April 10, 1958 None -- --
May 1, 1959 4-5/8% Series due 1989 20,000,000 None
April 18, 1960 None -- --
</TABLE>
I-1
<PAGE>
<TABLE>
<CAPTION>
Date of Principal
Supplemental Principal Amount
Indenture Series of Bonds Amount Issued Outstanding
--------- --------------- ------------- -----------
<S> <C> <C> <C>
April 19, 1961 None -- --
October 1, 1961 4-1/2% Series due 1991 30,000,000 None
March 1, 1962 4-5/8% Series due 1992 8,800,000 None
June 1, 1964 4-1/2% Series due 1994 35,000,000 None
May 1, 1966 5-3/8% Series due 1996 35,000,000 None
July 1, 1967* 5-7/8% Series due 1997 35,000,000 35,000,000
July 1, 1968* 6-3/4% Series due 1998 25,000,000 25,000,000
April 25, 1969 None -- --
April 21, 1970 None -- --
September 1, 1970 8-3/4% Series due 2000 35,000,000 None
February 1, 1971 7-1/4% Series due 2001 40,000,000 None
August 1, 1972 7-1/2% Series due 2002 50,000,000 None
June 1, 1973 7-5/8% Series due 2003 50,000,000 None
March 1, 1974 Pollution Control Series A 24,000,000 22,500,000
December 1, 1974 Pollution Control Series B 50,000,000 None
October 1, 1975 9-3/8% Series due 2005 50,000,000 None
April 28, 1976 None -- --
April 28, 1977 None -- --
November 1, 1977* 8-1/4% Series due 2007 50,000,000 None
April 28, 1978 None -- --
October 1, 1978 9-1/4% Series due 2008 50,000,000 None
October 1, 1979* Pollution Control Series C 50,000,000 None
March 1, 1980* 15% Series due 1987 50,000,000 None
April 28, 1981 None -- --
November 1, 1981* Pollution Control Series D 27,380,000 None
December 1, 1981* 16-1/4% Series due 2011 50,000,000 None
April 29, 1982 None -- --
May 1, 1983* Pollution Control Series E 42,000,000 None
April 30, 1984 None -- --
March 1, 1985* 13% Series due 2015 50,000,000 None
</TABLE>
I-2
<PAGE>
<TABLE>
<CAPTION>
Date of Principal
Supplemental Principal Amount
Indenture Series of Bonds Amount Issued Outstanding
--------- --------------- ------------- -----------
<S> <C> <C> <C>
November 1, 1986* Pollution Control Series F 27,250,000 27,250,000
May 1, 1987* 8.95% Series due 1992 75,000,000 None
July 1, 1990* 9-7/8% Series due 2020 75,000,000 75,000,000
December 1, 1990* Secured Medium-Term Notes, 191,500,000** 108,500,000*
Series A
March 1, 1992* 8-1/8% Series due 2004 and 100,000,000 100,000,000
8-3/4% Series due 2022 150,000,000 150,000,000
April 1, 1993* Pollution Control Series G 79,500,000 79,500,000
June 1, 1993* Pollution Control Series H 50,000,000 50,000,000
November 1, 1993* Collateral Series A 134,500,000 134,500,000
January 1, 1994* Collateral Series B due 2001 102,667,000 102,667,000
Collateral Series B due 2024 110,000,000 110,000,000
September 2, 1994 (appointment of None None
successor trustee)
May 1, 1996* Collateral Series C 125,000,000 125,000,000
due 2006
</TABLE>
* Contains amendatory provisions
** $200,000,000 authorized
I-3
<PAGE>
SCHEDULE B
PROPERTY DESCRIPTION
II-1
Exhibit 4(b)(3)
__________________________________________________
PUBLIC SERVICE COMPANY
OF COLORADO
TO
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
_________________
Supplemental Indenture No. 5
Dated as of November 1, 1996
Supplemental to the Indenture
dated as of October 1, 1993
________________
Establishing the Securities of Series No. 4
designated Secured Medium-Term Notes, Series B
__________________________________________________
<PAGE>
SUPPLEMENTAL INDENTURE NO. 5, dated as of November 1, 1996, between PUBLIC
SERVICE COMPANY OF COLORADO, a corporation duly organized and existing under the
laws of the State of Colorado (hereinafter sometimes called the "Company"), and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking association
(hereinafter sometimes called the "Trustee"), as successor trustee to Morgan
Guaranty Trust Company of New York under the Indenture, dated as of October 1,
1993 (hereinafter called the "Original Indenture"), as previously supplemented
and as further supplemented by this Supplemental Indenture No. 5. The Original
Indenture and any and all indentures and other instruments supplemental thereto
are hereinafter sometimes collectively called the "Indenture".
Recitals of the Company
The Original Indenture was authorized, executed and delivered by the
Company to provide for the issuance from time to time of its Securities (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as contemplated therein, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Securities.
The Company has heretofore executed and delivered to the Trustee the
Supplemental Indentures referred to in Schedule A hereto for the purpose of
establishing various series of bonds and of appointing the successor trustee.
The Company desires to establish a series of Securities to be designated
"Secured Medium- Term Notes, Series B", being a series of First Collateral Trust
Bonds, such series of Securities to be hereinafter sometimes called "Series No.
4".
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. 5 to establish the Securities of Series No. 4 and has
duly authorized the issuance of such Securities; and all acts necessary to make
this Supplemental Indenture No. 5 a valid agreement of the Company, and to make
the Securities of Series No. 4 valid obligations of the Company, have been
performed.
Granting Clauses
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 5 WITNESSETH, that, in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, and in order to secure the payment of the principal of and
premium, if any, and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants contained therein and in the
Indenture and to declare the terms and conditions on which such Securities are
secured, the Company hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms to the Trustee, and grants
to the Trustee a security interest in, the following:
Granting Clause First
All right, title and interest of the Company, as of the date of the
execution and delivery of this Supplemental Indenture No. 5, in and to
property (other than Excepted Property), real, personal and mixed and
wherever situated, in any case used or to be used in or in connection with
the Electric Utility Business (whether or not such use is the sole use of
such property), including without limitation [(a) all lands and interests
in land described or referred to in Schedule B hereto]; (b) all other
lands, easements, servitudes, licenses, permits, rights of way and other
rights and interests in or relating to real property used or to be used in
or in connection with the
<PAGE>
Electric Utility Business or relating to the occupancy or use of such real
property, subject however, to the exceptions and exclusions set forth in
clause (a) of Granting Clause First of the Original Indenture; (c) all
plants, generators, turbines, engines, boilers, fuel handling and
transportation facilities, air and water pollution control and sewage and
solid waste disposal facilities and other machinery and facilities for the
generation of electric energy; (d) all switchyards, lines, towers,
substations, transformers and other machinery and facilities for the
transmission of electric energy; (e) all lines, poles, conduits,
conductors, meters, regulators and other machinery and facilities for the
distribution of electric energy; (f) all buildings, offices, warehouses
and other structures used or to be used in or in connection with the
Electric Utility Business; (g) all pipes, cables, insulators, ducts,
tools, computers and other data processing and/or storage equipment and
other equipment, apparatus and facilities used or to be used in or in
connection with the Electric Utility Business; (h) any or all of the
foregoing properties in the process of construction; and (i) all other
property, of whatever kind and nature, ancillary to or otherwise used or
to be used in conjunction with any or all of the foregoing or otherwise,
directly or indirectly, in furtherance of the Electric Utility Business;
Granting Clause Second
Subject to the applicable exceptions permitted by Section 810(c),
Section 1303 and Section 1305 of the Original Indenture, all property
(other than Excepted Property) of the kind and nature described in
Granting Clause First which may be hereafter acquired by the Company, it
being the intention of the Company that all such property acquired by the
Company after the date of the execution and delivery of this Supplemental
Indenture No. 5 shall be as fully embraced within and subjected to the
Lien hereof as if such property were owned by the Company as of the date
of the execution and delivery of this Supplemental Indenture No. 5;
Granting Clause Fourth
All other property of whatever kind and nature subjected or required
to be subjected to the Lien of the Indenture by any of the provisions
thereof;
Excepted Property
Expressly excepting and excluding, however, from the Lien and
operation of the Indenture all Excepted Property of the Company, whether
now owned or hereafter acquired;
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto the
Trustee, its successors in trust and their assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the execution and
delivery of the Original Indenture (including, but not limited to, the Lien of
the PSCO 1939 Mortgage), (b) as to property acquired by the Company after the
date of the execution and delivery of the Original Indenture, Liens existing or
placed thereon at the time of the acquisition thereof (including, but not
limited to, the Lien of any Class A Mortgage and purchase money Liens), (c)
Retained Interests and (d) any other Permitted Liens, it being understood that,
with respect to any property which was at the date of execution and delivery of
the Original Indenture or thereafter became or hereafter becomes
2
<PAGE>
subject to the Lien of any Class A Mortgage, the Lien of the Indenture shall at
all times be junior, subject and subordinate to the Lien of such Class A
Mortgage;
IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Securities without
any priority of any such Security over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest of the Trustee in
and to the Mortgaged Property shall cease, terminate and become void in
accordance with, and subject to the conditions set forth in, Article Nine of the
Original Indenture, and if, thereafter, the principal of and premium, if any,
and interest, if any, on the Securities shall have been paid to the Holders
thereof, or shall have been paid to the Company pursuant to Section 603 of the
Original Indenture, then and in that case the Indenture shall terminate, and the
Trustee shall execute and deliver to the Company such instruments as the Company
shall require to evidence such termination; otherwise the Indenture, and the
estate and rights thereby granted, shall be and remain in full force and effect;
and
THE PARTIES HEREBY FURTHER COVENANT AND AGREE as follows:
ARTICLE ONE
Securities of Series No. 4
There are hereby established the Securities of Series No. 4, which shall
have the terms and characteristics set forth below (the lettered subdivisions
set forth below corresponding to the lettered subdivisions of Section 301 of the
Original Indenture):
(a) the title of the Securities of such series shall be "Secured
Medium-Term Notes, Series B", being a series of First Collateral Trust
Bonds; provided, however, that, at any time after the PSCO 1939 Mortgage
shall have been satisfied and discharged, the Company shall have the right,
without any consent or other action by the Holders of such Securities, to
change such title in such manner as shall be deemed by the Company to be
appropriate to reflect such satisfaction and discharge, such change to be
evidenced in an Officer's Certificate;
(b) there shall be no limit upon the aggregate principal amount of the
Securities of Series No. 4 which may be authenticated and delivered under
the Indenture. The Securities of Series No. 4 shall be initially
authenticated and delivered from time to time in the aggregate principal
amount of up to $250,000,000;
(c) interest on the Securities of Series No. 4 shall be payable to the
Persons in whose names such Securities are registered at the close of
business on the Regular Record Date for such interest, except as otherwise
expressly provided in the form of such Security attached as Exhibit A
hereto;
(d) the principal of each Security of Series No. 4 shall be payable on such
date as is specified in the Officer's Certificate applicable to such
Security;
(e) an Officer's Certificate with respect to each Security of Series No. 4
shall specify the rate at which such Security of Series No. 4 shall bear
interest, the date from which interest shall accrue, the Interest Payment
Dates if other than February 1
3
<PAGE>
and August 1 of each year and the Regular Record Dates with respect to the
Interest Payment Dates if other than January 15 and July 15;
(f) the Corporate Trust Office of First Trust of New York, National
Association, in New York, New York shall be the place at which (i) the
principal of, premium, if any, and interest, if any, on the Securities of
Series No. 4 shall be payable, (ii) registration of transfer of such
Securities may be effected, (iii) exchanges of such Securities may be
effected and (iv) notices and demands to or upon the Company in respect of
such Securities and the Indenture may be served; and First Trust of New
York, National Association, shall be the Security Registrar for the
Securities; provided, however, that the Company reserves the right to
change, by one or more Officer's Certificates, any such place or the
Security Registrar; and provided, further, that the Company reserves the
right to designate, by one or more Officer's Certificates, its principal
office in Denver, Colorado as any such place or itself as the Security
Registrar;
(g) each Security of Series No. 4 shall be redeemable only if and to the
extent specified in the Officer's Certificate applicable to such Security
of Series No. 4;
(h) not applicable to any Security of Series No. 4, except to the extent
specified in the Officer's Certificate applicable to a particular Security
of Series No. 4;
(i) the Securities of Series No. 4 shall be issuable in denominations of
$100,000 and any greater amount which is an integral multiple of $1,000;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) not applicable to any Security of Series No. 4, except to the extent
specified in the Officer's Certificate applicable to a particular Security
of Series No. 4;
(o) not applicable;
(p) not applicable;
(q) each Security of Series No. 4 is to be initially registered in the name
of Cede & Co., as nominee for The Depository Trust Company (the
"Depositary"). The Securities of Series No. 4 shall not be transferable or
exchangeable, nor shall any purported transfer be registered, except as
follows:
(i) a Security of Series No. 4 may be transferred in whole, and
appropriate registration of transfer effected, if such transfer is by
such nominee to the Depositary, or by the Depositary to another
nominee thereof, or by any nominee of the Depositary to any other
nominee thereof, or by the Depositary or any nominee thereof to any
successor securities depositary or any nominee thereof; and
4
<PAGE>
(ii) a Security of Series No. 4 may be exchanged for certificated
notes registered in the respective names of the beneficial holders
thereof, and thereafter shall be transferable without restriction, if:
(A) The Depositary, or any successor securities depositary,
shall have notified the Company and the Trustee that it is
unwilling or unable to continue to act as securities
depositary with respect to such Security of Series No. 4 or
the Company becomes aware that the Depositary has ceased to be
a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and, in any such case, the Trustee shall
not have been notified by the Company within ninety (90) days
of the identity of a successor securities depositary with
respect to such Security of Series No. 4;
(B) The Company shall have delivered to the Trustee a Company
Order to the effect that such Security of Series No. 4 shall
be so exchangeable on and after a date specified therein; or
(C) (1) an Event of Default shall have occurred and be
continuing, (2) the Trustee shall have given notice of such
Event of Default pursuant to Section 1102 of the Original
Indenture and (3) there shall have been delivered to the
Company and the Trustee an Opinion of Counsel to the effect
that the interests of the beneficial owners of such Security
of Series No. 4 in respect thereof will be materially impaired
unless such owners become Holders of certificated notes.
(r) not applicable;
(s) no service charge shall be made for the registration of transfer or
exchange of any Securities of Series No. 4 provided, however, that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with any such exchange or
transfer;
(t) not applicable;
(u) (i) If the Company shall have caused the Company's indebtedness in
respect of any Security of Series No. 4 to have been satisfied and
discharged prior to the Maturity of such Security of Series No. 4, as
provided in Section 901 of the Original Indenture, the Company shall,
promptly after the date of such satisfaction and discharge, give a notice
to each Person who was a Holder of any such Security of Series No. 4 on
such date stating (A)(1) the aggregate principal amount of such Security of
Series No. 4 and (2) the aggregate amount of any money (other than amounts,
if any, deposited in respect of accrued interest on such Security of Series
No. 4) and the aggregate principal amount of, the rate or rates of interest
on, and the aggregate fair market value of, any Eligible Obligations
deposited pursuant to Section 901 of the Original Indenture with respect to
such Security of Series No. 4 and (B) that the Company will provide (and
the Company shall promptly so provide) to such Person, or any beneficial
owner of such Security of Series No. 4 holding through such Person (upon
written request to the Company sent to an address specified in such
notice), such other information as such Person or beneficial owner, as the
case may be, reasonably may request in order to enable it to determine the
federal income tax
5
<PAGE>
consequences to it resulting from the satisfaction and discharge of the
Company's indebtedness in respect of such Security of Series No. 4.
Thereafter, the Company shall, within forty-five (45) days after the end of
each calendar year, give to each Person who at any time during such
calendar year was a Holder of such Security of Series No. 4 a notice
containing (X) such information as may be necessary to enable such Person
to report its income, gain or loss for federal income tax purposes with
respect to such Security of Series No. 4 or the assets held on deposit in
respect thereof during such calendar year or the portion thereof during
which such Person was a Holder of such Security of Series No. 4, as the
case may be (such information to be set forth for such calendar year as a
whole and for each month during such year) and (Y) a statement to the
effect that the Company will provide (and the Company shall promptly so
provide) to such Person, or any beneficial owner of such Security of Series
No. 4 holding through such Person (upon written request to the Company sent
to an address specified in such notice), such other information as such
Person or beneficial owner, as the case may be, reasonably may request in
order to enable it to determine its income, gain or loss for federal income
tax purposes with respect to such Security of Series No. 4 or such assets
for such year or portion thereof, as the case may be. The obligation of the
Company to provide or cause to be provided information for purposes of
income tax reporting by any Person as described in the first two sentences
of this paragraph shall be deemed to have been satisfied to the extent that
the Company has provided or caused to be provided substantially comparable
information pursuant to any requirements of the Internal Revenue Code of
1986, as amended from time to time (the "Code"), and United States Treasury
regulations thereunder.
(ii) Notwithstanding the provisions of subparagraph (i) above,
the Company shall not be required to give any notice specified in
such subparagraph or to otherwise furnish any of the information
contemplated therein if the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holder of
such Security of Series No. 4 will not recognize income, gain or
loss for federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in
respect of such Security of Series No. 4 and such Holder will be
subject to federal income taxation on the same amounts and in the
same manner and at the same times as if such satisfaction and
discharge had not occurred.
(iii) Anything in this clause (u) to the contrary
notwithstanding, the Company shall not be required to give any
notice specified in subparagraph (i) or to otherwise furnish the
information contemplated therein or to deliver any Opinion of
Counsel contemplated by subparagraph (ii) if the Company shall
have caused the applicable Security of Series No. 4 to be deemed
to have been paid for purposes of the Indenture, as provided in
Section 901 of the Original Indenture, but shall not have
effected the satisfaction and discharge of its indebtedness in
respect of such Security of Series No. 4 pursuant to such
Section.
(v) each Security of Series No. 4 shall be substantially in the
form attached as Exhibit A hereto and shall have such further
terms as are set forth in such form.
6
<PAGE>
ARTICLE TWO
Miscellaneous Provisions
This Supplemental Indenture No. 5 is a supplement to the Original
Indenture. As previously supplemented and further supplemented by this
Supplemental Indenture No. 5, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture, all previous
supplements thereto and this Supplemental Indenture No. 5 shall together
constitute one and the same instrument.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 5 to be duly executed as of the day and year first above written.
PUBLIC SERVICE COMPANY OF COLORADO
By:_____________________________
[Name]
Senior Vice President
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, Trustee
By:_____________________________
[Name]
Vice President
8
<PAGE>
STATE OF COLORADO )
) ss.:
CITY AND COUNTY OF DENVER )
On the day of , 1996, before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is a of Public Service
Company of Colorado, one of the corporations described in and which executed the
foregoing instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
______________________________
Notary Public
9
<PAGE>
STATE OF NEW YORK )
) ss.:
CITY AND COUNTY OF NEW YORK )
On the day of _______, 1996, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that she is a _______________ of First Trust of New York, National Association,
the national banking association described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the Board of
Directors of said national banking association.
____________________________
Notary Public
10
<PAGE>
EXHIBIT A
FORM OF SECURITY
(See legend at the end of this Security for
restrictions on transfer and change of form)
PUBLIC SERVICE COMPANY OF COLORADO
Secured Medium-Term Note, Series B
(being a First Collateral Trust Bond)
Original Issue Date: Regular Record Dates:
Interest Rate: Initial Redemption Date:
Default Rate: Initial Redemption Percentage:
Stated Maturity: Annual Redemption Percentage Reduction:
Interest Payment Dates: Optional Repayment Dates:
Addendum Attached
[ ] Yes Other/Additional Provisions:
[ ] No
This Note is not a Discount Security within the meaning of
the within-mentioned Indenture.
-----------------------------------------
Principal Amount Registered No.
$ CUSIP
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on the Stated Maturity specified above (or any Redemption Date or
Repayment Date as defined below), and to pay interest thereon from the Original
Issue Date specified above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
the Interest Payment Dates specified above in each year, commencing with the
Interest Payment Date next succeeding the Original Interest Date specified
above, and at Maturity, at the Interest Rate per annum
A-1
<PAGE>
specified above, computed on the basis of a 360-day year consisting of twelve
30-day months, until the principal hereof is paid or duly provided for and, to
the extent that payment of such interest shall be legally enforceable, at the
Default Rate per annum specified above on any overdue payment of principal,
premium, if any, and/or interest. The interest so payable, and paid or duly
provided for, on any Interest Payment Date shall, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
specified above (whether or not a Business Day) next preceding such Interest
Payment Date except that if the Original Issue Date of this Note is after the
Regular Record Date specified above and before the corresponding Interest
Payment Date, the first payment of interest on this Note shall be made to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date with respect to
the next succeeding Interest Payment Date. Notwithstanding the foregoing,
interest payable at Maturity shall be paid to the Person to whom principal shall
be paid. Except as otherwise provided in said Indenture, any such interest not
so paid or duly provided for shall forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) 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 of which shall be given to Holders of Securities
of this series not less than 15 days prior to such Special Record Date, or paid
in such other manner as permitted by the Indenture.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified on the face
hereof, this Note shall be subject to the terms set forth in such Addendum or
such "Other/Additional Provisions".
Payment of the principal of and premium, if any, on this Note and interest
hereon at Maturity shall be made upon presentation of this Note (and with
respect to any applicable repayment of this Note, a duly completed election form
as contemplated below) at the Corporate Trust Office of First Trust of New York,
National Association, in New York, New York or at such other office or agency as
may be designated for such purpose by the Company from time to time. Payment of
interest on this Note (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register, except that if such Person shall be a securities
depositary, such payment may be made by such other means in lieu of check as
shall be agreed upon by the Company, the Trustee and such Person. Payment of the
principal of and premium, if any, and interest on this Note, as aforesaid, shall
be made in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and issuable in one or more series under and
equally secured by an Indenture, dated as of October 1, 1993 (such Indenture as
originally executed and delivered and as supplemented or amended from time to
time thereafter, together with any constituent instruments establishing the
terms of particular Securities, being herein called the "Indenture"), between
the Company and First Trust of New York, National Association, as successor
trustee (herein called the "Trustee," which term includes any further successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the property mortgaged,
pledged and held in trust, the nature and extent of the security and the
respective rights, limitations of rights, duties and immunities of the Company,
the Trustee and the Holders of the Securities thereunder and of the terms and
conditions upon which the Securities are, and are to be, authenticated and
delivered and secured. The acceptance of this Note shall be deemed to constitute
the consent and agreement by the Holder hereof to all of the terms and
provisions of the Indenture. This Note is one of the series designated above.
A-2
<PAGE>
If any Interest Payment Date, any Redemption Date or the Stated Maturity
shall not be a Business Day (as hereinafter defined), payment of the amounts due
on this Note on such date may be made on the next succeeding Business Day; and,
if such payment is made or duly provided for on such Business Day, no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such Business
Day.
Unless otherwise specified in an Addendum attached hereto, this Note shall
not be subject to any sinking fund or other mandatory redemption and, unless
otherwise specified on the face hereof in accordance with the provisions of the
following four paragraphs, this Note is not subject to optional redemption or
repayment prior to the Stated Maturity hereof.
This Note is subject to redemption at the option of the Company at any
time on or after the Initial Redemption Date, if any, specified on the face
hereof, as a whole at any time or from time to time in part, in increments of
$1,000 (provided that any remaining principal amount hereof shall be at least
$100,000), at the Redemption Price (as defined below), plus unpaid accrued
interest hereon to the date fixed for redemption (each, a "Redemption Date").
The "Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage,
if any, specified on the face hereof until the Redemption Price is 100% of the
unpaid principal amount to be redeemed.
Notice of redemption shall be given by mail to the Holder of this Note,
not less than 30 days nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. As provided in the Indenture,
notice of redemption at the election of the Company as aforesaid may state that
such redemption shall be conditional upon the receipt by the Paying Agent or
Agents for this Note, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and interest, on
this Note; a notice of redemption so conditioned shall be of no force or effect
if such money is not so received and, in such event, the Company shall not be
required to redeem this Note.
In the event of redemption of this Note in part only, a new Note or Notes
of this series, of like tenor, for the unredeemed portion hereof and otherwise
having the same terms as this Note will be issued in the name of the Holder
hereof upon the cancellation hereof.
This Note will be subject to repayment by the Company at the option of the
Holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of $1,000 (provided that any remaining
principal amount hereof shall be at least $100,000), at a repayment price equal
to 100% of the unpaid principal amount to be repaid, plus unpaid interest
accrued hereon to the date fixed for repayment (each a "Repayment Date"). For
this Note to be repaid, this Note must be received not more than 60 nor less
than 30 calendar days prior to the Repayment Date, together with the form hereon
entitled "Option to Elect Repayment" duly completed, by the Trustee at its
Corporate Trust Office in New York, New York or such other office or agency as
may be designated by the Company from time to time. Exercise of such repayment
option by the Holder hereof will be irrevocable. In the event of repayment of
this Note in part only, a new Note or Notes of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note will be issued
in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
this Note may be declared due and payable in the manner and with the effect
provided in the Indenture.
A-3
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture 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 only of the 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; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange therefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient, to pay when due the principal of and
premium, if any, and interest on this Note when due.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the Corporate Trust
Office of First Trust of New York, National Association, in New York, New York
or such other office or agency as may be designated by the Company from time to
time, duly 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 his attorney duly authorized in writing, and thereupon one
or more new Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes, without coupons, and in
denominations of $100,000 and in any greater amount in integral multiples of
$1,000. As provided in the Indenture and subject to certain limitations therein
set forth, the Notes are exchangeable for a like aggregate principal amount of
Notes of the same series and Tranche, of any authorized denominations, as
requested by the Holder surrendering the same, and of like tenor upon surrender
of the Note or Notes to be exchanged at the Corporate Trust Office of First
Trust of New York, National Association, in New York, New York or such other
office or agency as may be designated by the Company from time to time.
A-4
<PAGE>
The Company shall not be required to execute or provide for the
registration of transfer of or the exchange of this Note during a period of 15
days immediately preceding the date notice is given calling this Note or any
part hereof for redemption, except with respect to the unredeemed portion of any
Note being redeemed in part.
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 Note 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 Note is registered as the absolute owner hereof for
all purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
As used herein "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
The City of New York, New York or other city in which is located any office or
agency maintained for the payment of the principal of, or premium, if any, or
interest on this Note, are generally authorized or required by law, regulation
or executive order to remain closed. All other terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, no recourse shall be had for the payment of
the principal of, premium, if any, or interest on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, shareholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and the
issuance of the Securities.
Unless the certificate of authentication hereon has been executed by the
Trustee or an Authenticating Agent by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal to be hereunto affixed and attested.
PUBLIC SERVICE COMPANY OF COLORADO
By:___________________________________
Senior Vice President
Attest:
______________________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:_______________
FIRST TRUST OF NEW YORK, OR FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION NATIONAL ASSOCIATION,
as Trustee as Trustee
By:__________________________ By: [ ],
Authorized Officer as Authenticating Agent
By:_____________________________
Authorized Officer
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
This Note may not be transferred or exchanged, nor may any purported
transfer be registered, except (i) this Note may be transferred in whole, and
appropriate registration of transfer effected, if such transfer is by Cede &
Co., as nominee for The Depository Trust Company (the "Depositary"), to the
Depositary, or by the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the Depositary or any
nominee thereof to any successor securities depositary or any nominee thereof;
and (ii) this Note may be exchanged for definitive Notes registered in the
respective names of the beneficial holders hereof, and thereafter shall be
transferable without restrictions if: (A) the Depositary, or any successor
securities depositary, shall have notified the Company and the Trustee that it
is unwilling or unable to continue to act as securities depositary with respect
to this Note or the Company becomes aware that the Depositary has ceased to be a
clearing agency registered under the Securities Exchange Act of 1934,
A-6
<PAGE>
as amended, and in any such case the Trustee shall not have been notified by the
Company within ninety (90) days of the identity of a successor securities
depositary with respect to this Note; (B) the Company shall have delivered to
the Trustee an Officer's Certificate to the effect that this Note shall be so
exchangeable on and after a date specified therein; or (C)(1) an Event of
Default shall have occurred and be continuing, (2) the Trustee shall have given
notice of such Event of Default pursuant to Section 1102 of the Indenture and
(3) there shall have been delivered to the Company and the Trustee an Opinion of
Counsel to the effect that the interests of the beneficial owners of this Note
in respect thereof will be materially impaired unless such owners become Holders
of definitive Notes.
________________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
[please insert social security or other identifying number of assignee]
- --------------------------------------------------------------------------------
[please print or typewrite name and address of assignee]
- --------------------------------------------------------------------------------
the within Note of PUBLIC SERVICE COMPANY OF COLORADO and does hereby
irrevocably constitute and appoint ________________, Attorney, to transfer said
Note on the books of the within-mentioned 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 Note in every particular without alteration
or enlargement or any change whatsoever.
A-7
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office in New York, New York not more than 60 nor less than 30 calendar
days prior to the Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000 (provided that
any remaining principal amount hereof shall be at least $100,000)) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be a minimum of $100,000) of the Notes to be issued to the Holder
for the portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $____________ _________________________________
Date:_______________________ Notice: The signature(s) on this
Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
A-8
<PAGE>
SCHEDULE A
SUPPLEMENTAL INDENTURES
Date of Principal
Supplemental Principal Amount
Indenture Series of Bonds Amount Issued Outstanding
--------- --------------- ------------- -----------
November 1, 1993 Series No. 1 $134,500,000 $134,500,000
January 1, 1994 Series No. 2 due 2001 and $102,667,000 $102,667,000
Series No. 2 due 2024 $110,000,000 $110,000,000
September 2, 1994 Appointment of None None
Successor Trustee
May 1, 1996 Series No. 3 due 2006 $125,000,000 $125,000,000
I-1
<PAGE>
SCHEDULE B
DESCRIPTION OF PROPERTY
II-1
Exhibit 5
LeBoeuf, Lamb, Greene & MacRae
L.L.P.
125 West 55th Street
New York, NY 10019-5389
October 22, 1996
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202
Re: Public Service Company of Colorado --
$400,000,000 in Aggregate Principal Amount of
First Collateral Trust Bonds
---------------------------------------------
Dear Sirs:
We are acting as counsel for Public Service Company of Colorado (the
"Company") in connection with the proposed issuance and sale of up to
$400,000,000 in aggregate principal amount of First Collateral Trust Bonds (the
"Securities") of the Company, to be issued in one or more separate series,
pursuant to an Indenture dated as of October 1, 1993, and the indentures
supplemental thereto, including one or more supplemental indentures to be
entered into in connection with the issuance of the Securities (the
"Indenture"), between the Company and First Trust of New York, National
Association, as successor trustee thereunder (the "Trustee").
As such counsel, we have examined such corporate records,
certificates and other documents as we have considered necessary for the
purposes of this opinion. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as copies and the authenticity of the originals of such latter documents.
As to any facts material to our opinion, we have, when relevant facts were not
independently established, relied upon the aforesaid records, certificates and
documents.
Upon the basis of the foregoing examination and subject to the
limitations contained herein, we are of the opinion that:
<PAGE>
Public Service Company of Colorado
October 22, 1996
Page 2
(a) when (i) the Registration Statement that is being filed
with the Securities and Exchange Commission with respect to the Securities
has become effective under the Securities Act of 1933, as amended (the
"Act") and (ii) the Prospectus relating to the Securities has been duly
supplemented with respect to the Securities of a particular series, and,
as so supplemented, duly filed under the Act, no further authorization,
consent or approval by any regulatory authority will be required for the
valid issuance and sale of the Securities of such series (except under the
so-called "blue-sky" or securities laws of the several states, as to the
applicability of which we do not express an opinion);
(b) when the Board of Directors of the Company has approved
the terms and conditions of the Supplemental Indenture creating a series
of Securities and the terms and conditions relating to the issuance and
sale of the Securities of such series, the Securities of such series will
have been duly authorized by the Company;
(c) upon the execution and filing with the Trustee of the
proper papers with respect to the Securities of a particular series, the
Securities of such series will be issuable under the terms of the
Indenture; and
(d) upon the execution, authentication and delivery of the
Securities of each particular series in accordance with the corporate and
governmental authorizations and the instruments referred to above and,
upon receipt of payment therefor, the Securities of such series will be
legally issued and binding obligations of the Company and will be entitled
to the benefits provided by the Indenture on a parity with the Securities
of other series which may hereafter be issued thereunder pursuant to the
terms thereof.
We consent to the filing of this opinion with and as a part of said
Registration Statement and the use of our name therein and in the related
Prospectus under the caption "Legal Opinions" and in any amendments or
supplements to the Registration Statement and Prospectus.
Very truly yours,
/s/LeBoeuf, Lamb, Greene & MacRae, L.L.P
Exhibit 12
PUBLIC SERVICE COMPANY OF COLORADO
AND SUBSIDIARIES
COMPUTATION OF RATIO OF CONSOLIDATED EARNINGS
TO CONSOLIDATED FIXED CHARGES
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
1996 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ----
(Thousands of Dollars, except ratios)
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest on long-term debt $ 43,782 $ 85,832 $89,005 $ 98,089 $ 92,581 $ 81,666
Interest on borrowings against corporate-
owned life insurance contracts.......... 19,286 34,717 29,786 25,333 18,312 8,144
Other interest............................ 9,947 23,392 14,235 9,445 12,357 14,574
Amortization of debt discount and expense
less premium ........................... 1,842 3,278 3,126 2,018 1,790 1,827
Interest component of rental expense...... 5,379 6,729 6,888 6,824 7,904 6,892
----- ----- ----- ----- ----- -----
Total ................................. $ 80,236 $153,948 $143,040 $141,709 $132,944 $113,103
======== ======== ======== ======== ======== ========
Earnings (before fixed charges and taxes on income):
Net income............... $ 98,966 $178,856 $170,269 $157,360 $136,623 $149,693
Fixed charges as above.................... 80,236 153,948 143,040 141,709 132,944 113,103
Provisions for Federal and state taxes
on income, net of investment tax credit
amortization............................ 57,459 95,357 48,500 60,994 53,149 69,288
------ ------ ------ ------ ------ ------
Total.................................. $236,661 $428,161 $361,809 $360,063 $322,716 $332,084
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 2.95 2.78 2.53 2.54 2.43 2.94
======== ======== ======= ======= ======== ========
</TABLE>
EXHIBIT 15
October 22, 1996
Public Service Company of Colorado
We are aware that Public Service Company of Colorado has incorporated by
reference in this registration statement, pertaining to the registration of
$400,000,000 of First Collateral Trust Bonds, in one or more series of secured
medium-term notes, its Form 10-Q's for the quarters ended March 31, 1996 and
June 30, 1996, which include our reports dated May 10, 1996 and August 6, 1996,
respectively, covering the unaudited consolidated condensed financial statements
contained therein. Pursuant to Regulation C of the Securities Act of 1933, these
reports are not considered a part of the registration statement prepared or
certified by our Firm or a report prepared or certified by our Firm within the
meaning of Sections 7 and 11 of the Act.
ARTHUR ANDERSEN LLP
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 15, 1996,
included in Public Service Company of Colorado's Form 10-K for the year ended
December 31, 1995, and to all references to our Firm included in such Form 10-K.
ARTHUR ANDERSEN LLP
Denver, Colorado
October 22, 1996
Exhibit 25
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
_______________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
_______________
Dennis J. Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
(Name, address and telephone number of agent for service)
______________
PUBLIC SERVICE COMPANY OF COLORADO
(Exact name of obligor as specified in its charter)
Colorado 84-0296600
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
1225 17th Street
Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
_______________
FIRST COLLATERAL TRUST BONDS
(Title of the indenture securities)
<PAGE>
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.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of First Trust of New York, National
Association, incorporated herein by reference to Exhibit 1 of
Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First Trust of
New York, National Association, incorporated herein by
reference to Exhibit 2 of Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust powers
for First Trust of New York, National Association, incorporated
herein by reference to Exhibit 3 of Form T-1, Registration No.
33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association,
Incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 33-55851.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association,
required by Section 321(b) of the Act, incorporated herein
by reference to Exhibit 6 of Form T-1, Registration No.33-83774.
Exhibit 7. Report of Condition of First Trust of New York, National
Association, as of the close of business on June 30, 1996,
published pursuant to law or the requirements of its supervising
or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, a national
banking association organized and existing under the laws of the United States,
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 21st day of October, 1996.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
________________________________
Catherine F. Donohue
Vice President
<PAGE>
Exhibit 7
First Trust of New York, N. A.
Statement of Financial Condition
As of 06/30/96
($000's)
06/30/96
--------
Assets
Cash and Due From Depository Institutions $29,167
Federal Reserve Stock 3,658
Fixed Assets 707
Intangible Assets 82,730
Other Assets 8,084
-----
Total Assets $124,346
========
Liabilities
Other Liabilities 6,207
-----
Total Liabilities 6,207
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (3,793)
------
Total Equity Capital 118,139
Total Liabilities and Equity Capital $124,346
========
================================================================================
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N. A.
By: /s/ Catherine F. Donohue
__________________________
Vice President
Date: October 21, 1996
