As filed with the Securities and Exchange Commission on March 6, 1998June 29, 1999
Registration No. 333-
- -------------------------------------------------------------------------------333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------_____________
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------_____________
PUBLIC SERVICE COMPANY Colorado 84-0296600
OF COLORADO
PSCO Capital Trust I Delaware Applied For(Exact name of registrant as specified in the charter)
Colorado
(State or other (I.R.S. Employer
jurisdiction of Identification Number) incorporation or
organization)
84-0296600
(I.R.S. Employer Identification No.)
1225 17th Street, Denver, CO 80202-5533, (303) 571-7511
(Address, including zip code, and telephone number, including area code, of
each registrant's principal executive offices)
--------------------_____________
Brian P. Jackson
Senior Vice President, and Chief Financial Officer and Treasurer
Public Service Company of Colorado
1225 17th Street, Denver, CO 80202-5533, (303) 571-7511
(Name, address, including zip code, and telephone number, including area code,
of agent for service for each registrant)
--------------------service)
_____________
Copies to:
S.A. MARSHALL, ESQ. G.W. WOLF, ESQ.Susan A. Marshall, Esq. Gary W. Wolf, Esq.
LeBoeuf, Lamb, Greene & MacRae L.L.P. Cahill Gordon & Reindel
MacRae L.L.P. 80 Pine Street
125 West 55th Street 80 Pine Street
New York, NY 10019-5389 New York, NY 10005-1702
New York, NY 10019-5389(212) 424-8000 (212) 701-3000
(212) 424-8000
--------------------_____________
Approximate date of commencement of proposed sale to the public: At such
time or times after the effective date of this Registration Statementregistration 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/[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./ /
--------------------
CALCULATION OF REGISTRATION FEE[_]
_____________
Calculation of Registration Fee
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=============================================================================================================
Proposed Maximum
Offeringmaximum Proposed Maximummaximum
Title of Each Classeach class of Amount to Price Per Unit Aggregate Offeringbe offering aggregate offering Amount of
Securitiessecurities to be Registered be Registeredregistered registered price per unit (1)(2) price (1)(2)(3) Price (1)(2)(3) Registration Fee registration fee
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Preferred Securities of PSCO Capital Trust I
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First Collateral Trust Bonds of Public Service
Company of Colorado
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Senior Debt Securities of Public Service Company
of Colorado
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Subordinated Debt Securities of Public Service
Company of Colorado
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Guarantee of Preferred Securities of PSCO
Capital Trust I by Public Service Company of
Colorado (4)
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Total $450,000,000$500,000,000 100% $450,000,000 $132,750
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------$500,000,000 $139,000
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(1) Such indeterminate number of Preferred Securities of PSCO Capital Trust I
and such indeterminate principal amount of First Collateral Trust Bonds,
Senior Debt Securities and Subordinated Debt Securities of Public Service
Company of Colorado as may be from time to time issued at indeterminate
prices. Subordinated Debt Securities of Public Service Company of
Colorado may be issued and sold to PSCO Capital Trust I, in which event
such Subordinated Debt Securities may later be distributed to the holders
of Preferred Securities upon a dissolution of PSCO Capital Trust I, and
the distribution of the assets thereof.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457.457(o) under the Securities Act. The aggregate public offering price
of the Preferred
Securities of PSCO Capital Trust I and First Collateral Trust Bonds, Senior Debt Securities and Subordinated Debt Securities of Public Service Company
of Colorado registered hereby will not exceed
$450,000,000.
(3)$500,000,000.
(2) Exclusive of accrued interest, and distributions, if any.
(4) Includes the rights of holders of Preferred Securities under the
Guarantee of Preferred Securities and back-up undertakings, consisting of
obligations by Public Service Company of Colorado as set forth in the
Amended and Restated Declaration of Trust of PSCO Capital Trust I, the
Subordinated Debt Securities Indenture (as defined below) and Supplemental
Indentures thereto, in each case as further described in the Registration
Statement. No separate consideration will be received for the Guarantee
or any back-up undertakings.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A_____________
The registrant hereby amends this registration statement on such date or dates
as may be necessary to these securities has been fileddelay 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, or until the registration statement shall become effective on
such date as the Securities and Exchange Commission. These securitiesCommission, acting pursuant to Section
8(a), may determine.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be sold norchanged. We may offers to buy
be accepted prior to the time+
+not sell these securuties until the registration statement becomesfiled with the +
+Securities and Exchange Commission is effective. This prospectus shallis not constitutean +
+offer to sell these securities and it is not soliciting an offer to sell or the solicitation of any
offer to buy nor shall there be any sale of these securities+
+securities in any state in
which suchwhere the offer solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state.
is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED , 1998JUNE 29, 1999
PROSPECTUS
$450,000,000$500,000,000
[PSCO LOGO]
FIRST COLLATERAL TRUST BONDS
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
--------------------
PSCO CAPITAL TRUST I
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
PUBLIC SERVICE COMPANY OF COLORADO
--------------------
Public Service Company of Colorado, a Colorado corporation (the
"Company"),Senior Debt Securities
We may offer, from time to time, (i) first collateral trust bonds,
which may include medium term notes (the "New Bonds"), (ii) unsecured senior
debt securities consisting of debentures, notes and/or other evidences of
indebtedness representing unsecured obligations of the Company (the "Senior
Debt Securities"), or (iii) unsecured subordinated debt securities consisting
of debentures, notes and/or other evidences of indebtedness representing
unsecured obligations of the Company (the "Subordinated Debt Securities",
together with the Senior Debt Securities the "Debt Securities"), in each
casethat will be
our unsecured obligations. These Senior Debt Securities may be offered in one or
more series, including one or more series of medium term notes, and in amounts,
at prices and on terms to be
determinedas we determine at or prior to the time or times of sale.
PSCO Capital Trust I (the "Trust"), a statutory business trust
formed under the lawsWe will provide specific terms of the State of Delaware, may offer a single series of
its preferred securities representing undivided beneficial interests in the
assets of the Trust ("Preferred Securities") in an amount and at the price
and terms to be determined at or prior to the time of sale. The Company will
be the owner of beneficial interests represented by the common securities of
the Trust (the "Common Securities", together with the Preferred Securities,
the "Trust Securities"). The payment of periodic cash distributions
("Distributions") with respect to the Preferred Securities out of moneys held
by the Trust, and payment upon liquidation, redemption or otherwise with
respect to such Preferred Securities, will be guaranteed by the Company to
the extent described herein (the "Preferred Securities Guarantee"). See
"Description of the Preferred Securities Guarantee" below. The Company's
obligations under the Preferred Securities Guarantee are subordinate and
junior in right of payment to all other liabilities of the Company and rank
PARI PASSU with the most senior preferred stock, if any, now outstanding or
issued from time to time by the Company. The Company's Subordinated Debt
Securities may be issued from time to time in one or more series directly or
may be issued and sold to the Trust, or a trustee of the Trust, in connection
with the investment of the proceeds from the offering of Preferred Securities
and Common Securities (as defined herein) of the Trust. Subordinated Debt
Securities purchased by the Trust may subsequently be distributed pro rata to
the holders of Preferred Securities and Common Securities in connection with
the dissolution of the Trust.
The New Bonds,these Senior Debt Securities Subordinatedand the manner in
which they are being offered in supplements to this prospectus. You should read
this prospectus and any supplement carefully before you invest. We cannot sell
any of these Senior Debt Securities and Preferred Securities together withunless this prospectus is accompanied by a
prospectus supplement.
We may sell the related Preferred Securities
Guarantee are collectively referred to as the "Offered Securities".
Certain specific terms of the Offered Securities in respect of
which this Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement or Supplements, together with the terms of the
particular Offered Securities being offered by such Prospectus Supplement or
Supplements, the initial price thereof and the net proceeds from the sale
thereof. The Prospectus Supplement will set forth with regard to the
particular Offered Securities, without limitation and where applicable, the
following: (i) in the case of the New Bonds, the designation, aggregate
principal amount, maturity date or dates, interest rate or rates and times of
payment of interest, the terms of any redemption provisions, the purchase
price and any other specific terms of the offering, (ii) in the case of theSenior Debt Securities the designation, aggregate principal amount, denominations,
maturity date or dates, premium, if any, terms of subordination, if any, and
exchange, conversions, redemption or sinking fund provisions, interest
payment dates, interest rate or rates (which may be fixed or variable) or
method of calculating interest, currency or currency units in which principal
of, premium, if any, and interest will be payable, purchase price, any
listing on a securities exchange, any right of the Company to defer payment
of interest and the maximum length of such deferral period and any other
specific terms of the offering and (iii) in the case of the Preferred
Securities, the specific title, aggregate amount, number of securities,
stated liquidation preference per security, purchase price, any listing on a
securities exchange, dividend rate (or method of calculation thereof), dates
on which dividends shall be payable and dates from which dividends shall
accrue, any voting rights, any redemption, exchange or sinking fund
provisions, any other rights, preferences, privileges, limitations or
restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the Preferred Securities shall be used to purchase a specific
series of Subordinated Debt Securities of the Company.
The Offered Securities may be sold to or through underwriters,
through dealers or agents, directly to other purchasers or through a combination of
such methods. See "Plan of Distribution".agents. The prospectus supplement will
set forth the names of any underwriters
dealers or agents involved in the sale of the
OfferedSenior Debt Securities, in respect
of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them willthe principal amounts to be set forth in the
related Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for dealers,purchased by underwriters
and the compensation of the underwriters or agents.
--------------------
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.
--------------------_______________
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
_______________
The date of this Prospectusprospectus is , 1998.
-2-1999.
AVAILABLE INFORMATION
The CompanyABOUT THIS PROSPECTUS
This prospectus is subjectpart of a registration statement that we have filed with
the SEC utilizing a shelf registration process. Under this shelf registration
process, we may sell the securities described in this prospectus in one or more
offerings up to the informational requirementsa total principal amount of $500,000,000.
This prospectus provides you with a general description of the Securities Exchange Actsecurities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of 1934, as amended (the "Exchange Act"),that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. The registration statement we filed with the SEC
includes exhibits that provide more detail on descriptions of the matters
discussed in this prospectus. You should read this prospectus and in
accordance therewith filesthe related
exhibits filed with the SEC and any prospectus supplement together with
additional information described under the heading "Where You Can Find More
Information".
WHERE YOU CAN FIND MORE INFORMATION
We file reports and other information with the Securities and Exchange
Commission (the "SEC") andCommission. Certain of the New York Stock Exchange. Such reports and other information canthat we file may be inspectedincluded
in the combined reports and copied at the public
reference facilities maintained byinformation of New Century Energies, Inc. ("NCE"),
of which we are a wholly-owned subsidiary. You may read and copy any document we
file with the SEC at the SEC's Public Reference Room 1024, Judiciary Plaza,located at 450 Fifth
Street, N.W., Washington, D.C., 20549 and at the following regional offices of the SEC: New York Regional Office, 13th Floor, SevenSEC
located at the Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago Illinois 50551-2511, and at 7 World Trade Center, Suite 1300, New York,
New York and Chicago Regional Office, 14th Floor, 500 West Madison
Street, Chicago, Illinois. Copies10048. You may obtain further information regarding the operation of
such materials can also be obtained at
prescribed rates from the SEC's Public Reference Section ofRoom by calling the SEC at its
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material is1-800-SEC-0330. Our
filings are also available fromto the public on the SEC's WebInternet site located at
"http:http://www.sec.gov". Certainwww.sec.gov. In addition, you may inspect our reports at the offices of
the Company's securities are listed on theThe New York Stock Exchange, and such reports and other information can also be
inspected and copiedInc. at the office of such exchange on the 7th Floor, 20 Broad Street, New York, New York.York 10005.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. This Prospectus constitutes ainformation
incorporated by reference is considered to be part of a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filedthis prospectus, unless we
update or supersede that information by the Companyinformation contained in this
prospectus or any prospectus supplement or by information that we file
subsequently that is incorporated by reference into this prospectus. We are
incorporating by reference into this prospectus the documents listed below that
we have filed with the SEC and the Trustfuture filings we will make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1933, as amended1934
(the "Securities"Exchange Act"), with respect tountil the Offered Securities. This Prospectus does not contain alloffering of the information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the SEC.
Referencesecurities offered hereby is
made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company, the Trust, and
the Offered Securities. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement
or otherwise filed with the SEC or incorporated by reference herein are not
necessarily complete, and in each instance reference is made to the copy of
such document so filed for a more complete description of the matter
involved. Each such statement is qualified in its entirety by such reference.
No separate financial statements of the Trust have been included or
incorporated by reference herein. The Company does not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Trust will be owned, directly
or indirectly, by the Company, a reporting company under the Exchange Act,
(ii) the Trust has no independent operations but exists for the sole purpose
of issuing securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in Subordinated Debt
Securities issued by the Company and (iii) the Company's obligations
described herein and in any accompanying Prospectus Supplement under the
Declaration of Trust of the Trust, the Preferred Securities Guarantee, the
Subordinated Debt Securities purchased by the Trust and the related
Indenture, taken together, constitute a full and unconditional guarantee of
payments due on the Preferred Securities. See "Description of the
Subordinated Debt Securities" and "Description of the Preferred Securities
Guarantee".
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:completed:
1. The Company'sOur Annual Report on Form 10-K for the year ended December 31, 19971998
(included in the New Century Energies, Inc.NCE combined Annual Report on Form 10-K for such year.)
2. Our Quarterly Report on Form 10-Q for the yearquarter ended DecemberMarch 31, 1997).
All documents1999
(included in the NCE combined Quarterly Report on Form 10-Q for such quarter.)
3. Our Reports on Form 8-K filed byFebruary 23, 1999 and June 28, 1999
(included in the CompanyNCE combined Report on Form 8-K.)
-2-
This prospectus is part of a registration statement we have filed with the
SEC pursuantrelating to Section
13(a), 13(c), 14 or 15(d)our securities. As permitted by SEC rules, this prospectus does
not contain all of the Exchangeinformation included in the registration statement and
the accompanying exhibits and schedules we file with the SEC. You should read
the registration statement, the exhibits and the schedules for more information
about us and our securities. The registration statement, exhibits and schedules
are also available at the SEC's Public Reference Room or through its Internet
site.
You may also obtain a copy of our filings with the SEC at no cost by
writing to or telephoning us at the following address:
Attn: Brian P. Jackson
Senior Vice President, Chief Financial Officer and
Treasurer
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202-5533
(Tel: 303-571-7511)
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this prospectus and in any accompanying prospectus
supplement, including the documents that are incorporated by reference as set
forth in "Where You Can Find More Information," that are not historical facts
are forward-looking statements as defined in the Private Securities Litigation
Reform Act afterof 1995. Forward-looking statements are based on the datebeliefs of filingour
management as well as assumptions made by and information currently available to
our management. We caution that assumptions, projections, expectations,
intentions or beliefs about future events may and often do vary materially from
actual results and the differences between assumptions, projections,
expectations, intentions or beliefs and actual results can be material.
Accordingly, there can be no assurance actual results will not differ materially
from those expressed or implied by forward-looking statements.
The following are some of the Registration Statement of which this Prospectus is a part and priorfacts that could cause actual results to
differ from those expressed or implied in 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
-3-
incorporated herein by reference are sometimes hereinafter called the
"Incorporated Documents". Any statement contained herein or 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 or any Prospectus Supplement.
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 BRIAN P. JACKSON, SENIOR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER, BY MAIL TO PUBLIC SERVICE COMPANY
OF COLORADO, SUITE 900, 1225 17TH STREET, DENVER, COLORADO 80202-5533, OR BY
TELEPHONE AT (303) 571-7511.
In addition to the historical informationforward-looking statements
contained or incorporated by reference herein, this Prospectus contains or incorporates by reference a
number of "forward-looking statements" withinherein:
. the meaningeffects of the Exchange
Act. Such statements address future events and conditions concerning capital
expenditures, resolution and impact of litigation, regulatory matters,
liquidity and capital resources and accounting matters. Actual results in
each case could differ materially from those projected in such statements due
to a variety of factors including, without limitation, restructuring of the
utility industry;weather;
. future economic conditions;
. the performance of generating units;
. fuel prices and availability;
. regulatory decisions and the effects of changes in state and federal
laws;
. the pace of deregulation of domestic retail natural gas and electric
markets;
. the timing and extent of change in commodity prices for all forms of
energy;
. capital spending requirements;
. the evolution of competition;
. earnings retention and dividend payout policies;
developments. consummation of the proposed merger between NCE and Northern States
Power Company; and
-3-
. changes in the legislative, regulatory and competitive
environments in which the Company operates;accounting standards and other circumstances that
could affect anticipated revenuesfactors.
When used in our documents, the words "anticipate," "estimate," "expect,"
"forecast," "goal," "objective," "projection" or similar words are intended to
identify forward-looking statements.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties, and costs, such as compliance with laws and
regulations. These and other factorsassumptions, the forward-looking
events discussed or incorporated by reference in this prospectus might not
occur.
OUR COMPANY
We are discussed in the Company's filings
with the SEC.
-4-
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 principally in the generation,
purchase, transmission, distribution and sale of electricity and in the
purchase, transmission,transportation, distribution, sale and transportationsale of natural gas, with the Company'sour
principal distribution center being the Denver metropolitan area. The Company'sWe were
incorporated through merger of predecessors under the laws of the State of
Colorado in 1924. Our executive offices are located at 1225 17th Street, Denver,
Colorado 80202-5533, where theour telephone number is (303) 571-7511. Internet
users can obtain information about us and about NCE and its services at
http://www.ncenergies.com
On August 1, 1997, the Company and Southwestern Public Service Company consummated a
business combination with us and we each became a wholly-owned subsidiary of
New Century Energies, Inc. ("NCE"),NCE, a registered holding company under the Public Utility Holding Company Act
of 1935. The merger transaction has been accounted for as a pooling of interests
for accounting purposes. As a result of the merger transaction, NCE directly
owns the following subsidiaries which
previously had been directly owned by the Company: Cheyenne Light, Fuel and Power Company and WestGas InterState, Inc. The CompanyThese
subsidiaries were directly ownsowned by us before the following subsidiaries: PS Colorado Credit Corporation ("PSCCC"), PSR
Investments, Inc., 1480 Welton, Inc., Fuel Resources Development Co., a
dissolved corporation, and New Century International, Inc., which was
established in 1997 in connection with the Company's investment in Yorkshire
Power Group, plc. The Company intends to transfer the capital stock of PSCCC
to NCE after receipt of regulatory and other approvals.merger. NC Enterprises, Inc.,
a wholly-owned subsidiary of NCE, directly owns the following subsidiaries which
previously had been directly owned by the Company:us: e prime, inc., New Century
International, Inc. and Natural Fuels Corporation. TheWe directly own: Green and
Clear Lakes Company, intends that New
Century International,PS Colorado Credit Corporation, PSR Investments, Inc., will be transferred to and become a wholly-owned
subsidiary of NC Enterprises, Inc. following receipt of appropriate
regulatory approval.
THE TRUST
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust (as such declaration will be amended
and restated substantially as set forth in the form attached to the
Registration Statement of which this Prospectus is a part, the "Declaration")
executed by the Company as depositor for the Trust (the "Depositor"), and
1480 Welton, Inc. We are considering transferring the PSCO Trustees (as defined herein)capital stock of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware.
The Trust exists for the exclusive purposes of (i) issuing and selling the
Preferred Securities and the Common Securities, (ii) using the gross proceeds
from the sale of the Trust SecuritiesPS
Colorado Credit Corporation to acquire a corresponding series of
Subordinated Debt Securities of the Company and (iii) maintaining the status
of the Trust as a grantor trust for federal income tax purposes and engaging
inNCE. This transfer can only those other activities necessary, appropriate, convenient or
incidental to the foregoing. All of the Common Securities will be directly
or indirectly owned by the Company. The Common Securities will rank PARI
PASSU, and payments will be made thereon pro rata, with the Preferred
Securities, exceptafter all
regulatory and other approvals are obtained. In addition, we have a controlling
interest in several other relatively small companies whose operations are not
significant and that upon the occurrence and continuance of an event of
default with respect to the corresponding series of Subordinated Debt
Securities of the Company, the rights of the holders of the Common Securities
to payment of cash distributions and payments upon redemption, liquidationare not consolidated in our financial or otherwise will be subordinated to the rights of the holders of the Preferred
Securities. The Company will directly or indirectly acquire Common
Securities in an aggregate liquidation amount equal to at least 3% of the
total capital of the Trust.
The Trust's business and affairs are conducted by three trustees, each
appointed by the Company in its capacity as holder of the Common Securities:
(i) The Bank of New York (the "Property Trustee"); (ii) The Bank of New York
(Delaware) (the "Delaware Trustee"); and (iii) one individual trustee who is
an employee or officer of or affiliated with the Company (the "Administrative
Trustee", and collectively with the Property Trustee and the Delaware
Trustee, the "PSCO Trustees"). The holder of the Common Securities, or the
holders of at least a majority in aggregate liquidation amount of the Trust's
Preferred Securities if an event of default under the Declaration has
occurred and is continuing (a "Declaration Event of Default"), will be
entitled to remove and replace the Property Trustee and the Delaware Trustee.
In no event will the holders of the Preferred Securities have the right to
vote to appoint, remove or replace the Administrative Trustee, which
-5-statistical
statements.
-4-
voting rights are vested exclusively in the holder of the Common Securities.
The duties and obligations of each of the PSCO Trustees are governed by the
Declaration.
The Company will pay all fees and expenses related to the Trust and the
offering of its Preferred Securities and will pay, directly or indirectly,
all ongoing costs, expenses and liabilities of the Trust except the Trust's
obligations under its Trust Securities.
The principal place of business of the Trust shall be c/o Public Service
Company of Colorado, 1225 17th Street, Suite 900, Denver, Colorado
80202-5533, where the telephone number is (303) 571-7511.
RATIO OF CONSOLIDATED EARNINGS TO
CONSOLIDATED FIXED CHARGES
Twelve Months Ended December 31,
1993Three Months Ended
1994 1995 1996 1997 --------------------------------------1998 March 31, 1999
------ ------ ------ ------ ------ --------------
Ratio of consolidated
earnings to consolidated fixed charges 2.54 2.53 2.78 2.75 2.49 2.43 2.73
The ratio for future periods will be included in the Company'sour annual and quarterly
reports filed pursuant towith the Exchange Act.SEC. Such reports are incorporated by reference into this
Prospectusprospectus at the time they are filed.
APPLICATION OF PROCEEDS
Unless otherwise indicated in a prospectus supplement relating to the accompanying Prospectus Supplement,
the Company intendsissue
of a particular series of Senior Debt Securities, we intend to use the net
proceeds from the sale of any of the New
Bonds orSenior Debt Securities offered hereby (i) to refinance short-term and other
debt, (ii) to repurchase or redeem outstanding preferred stock of the
Company and (iii) for general
corporate purposes. Any specific allocationpurposes, including capital expenditures, repayment of the proceeds to a particular purpose that has been made at the dateshort-term debt
and refunding of any
Prospectus Supplement will be described therein. The Trust will use the
proceeds from the sale of its Preferred Securities to purchase Subordinated
Debt Securities of the Company.long-term debt on maturity or otherwise.
DESCRIPTION OF THE NEW BONDS
GENERAL: The New Bonds will be issuedSENIOR DEBT SECURITIES
General: We may issue from time to time, in one or more series, as fully
registered bonds, without coupons,the Senior
Debt Securities under an Indenture ( the "Indenture") between us and The Bank of
New York, as trustee (the "Trustee"). This prospectus describes certain general
terms of the Senior Debt Securities that we may offer. The information we are
providing you in this prospectus concerning the Senior Debt Securities and the
Indenture is only a summary of the information provided in these documents. You
should consult the Senior Debt Securities themselves, the Indenture and other
documents for more complete information on the Senior Debt Securities. The form
of the Indenture is an exhibit to the registration statement, and you should
read it for provisions that may be important to you. In the summary below, we
have included references to section numbers of the Indenture so that you can
easily locate these provisions. Capitalized terms used in the following summary
have the meanings specified in the Indenture unless otherwise defined below.
When we offer to sell a particular series of Senior Debt Securities, we will
describe the specific terms of that series in a prospectus supplement.
There is no requirement under the Indenture described in this prospectus
that future issues of our debt securities be issued under the Indenture we have
described. We may use other indentures or documentation, which may contain
provisions different from those included in the Indenture, in connection with
future issues of debt securities. The Indenture does not contain any debt
covenants or provisions that would afford holders of the Senior Debt Securities
protection in the event of a highly leveraged transaction.
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The Senior Debt Securities will be our unsecured obligations. The Indenture
does not limit the aggregate principal amount of Senior Debt Securities that may
be issued thereunder. (See Section 301.) It does not limit the incurrence or
issuance of other secured or unsecured debt by us. As of December 31, 1998,
there were $549,750,000 in aggregate principal amount of our First Mortgage
Bonds outstanding under our Indenture, dated as of December 1, 1939 (the 1939
Mortgage) between us and U.S. Bank Trust National Association, as successor
trustee, excluding First Mortgage Bonds issued solely as security for our
First Collateral Trust Bonds. The 1939 Mortgage constitutes, subject to certain
exceptions, a first mortgage lien on substantially all our properties. As of
December 31, 1998, there were $972,167,000 in aggregate principal amount of our
First Collateral Trust Bonds outstanding under our Indenture, dated as of
October 1, 1993 (the "Original 1993 Mortgage"),Mortgage) between the Companyus and FirstU.S. Bank Trust of
New York, National
Association, as successor trustee (together with any
further successor thereto, the "1993 Mortgage Trustee").trustee. The Original 1993 Mortgage as supplemented andconstitutes a lien on
substantially all of our properties used or to be supplementedused in or in connection with
the business of generating, purchasing, transmitting, distributing and/or
selling electric energy, which lien is junior to the lien of the 1939 Mortgage.
Additionally, as of December 31, 1998, there were $200,000,000 in aggregate
principal amount of our Deferrable Interest Subordinated Debentures outstanding
under our Subordinated Debt Securities Indenture, dated as of May 1, 1998 ( the
Subordinated Debt Indenture) between us and The Bank of New York, as trustee.
The Deferrable Interest Subordinated Debentures issued under our Subordinated
Debt Indenture are subordinated and junior in right of payment to the Senior
Debt Securities.
The Senior Debt Securities will rank as equal in right of payment to our
other unsecured indebtedness, except for any indebtedness that, by various supplemental
indentures, including one or more supplemental indenturesits terms, is
subordinate to the Senior Debt Securities.
Please read the prospectus supplement 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 provisionsissue of the 1993 Mortgage.
Capitalized terms used under this heading which are not otherwise defined
hereunder shall have the meanings ascribed thereto in the 1993 Mortgage.
Wherevera particular
provisionsseries 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,Senior Debt Securities for, among 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
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"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".
Reference is made to the Prospectus Supplement and any supplement
thereto for a description ofthings, the following terms
of the series of New Bonds
in respect of which this Prospectus is being delivered: (i)thereof:
. the title of such New Bonds; (ii)the series;
. any limit on the aggregate principal amount of such New Bonds; (iii)
the price (expressed as a percentageseries;
. whether any of principal amount) at which such New
Bondsthe Senior Debt Securities of that series will be
issued; (iv)issued in global form and, if so, the identity of the depository and
the specific terms of the depository arrangements;
. the date or dates on which the principal of such
New Bonds is payable;
(v). the rate or rates at which such New Bondsthe Senior Debt Securities of that series
will bear interest if any,or the method of determining the rate or rates;
. the date or dates from which such interest will accrue,accrue;
. the dates on which such interest will be payable ("Interest Payment Dates"), and the regular
record dates for such interest payment dates;
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. the interest payable on such Interest Payment
Dates; (vi)place or places where the option,principal of, premium, if any, of the Company to redeem such New Bonds and
the periodinterest shall be payable;
. any redemption terms, including mandatory redemption through a sinking
fund or periods within which, or the date or dates on which, the pricesotherwise, redemption at whichour option 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 Bondsredemption 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)holder;
. the denominations in which such New Bondsthe Senior Debt Securities will be
issuable, if other than denominations of $1,000 and any integral
multiplesmultiple thereof;
(ix). whether the provisions of the Indenture relating to defeasance and
covenant defeasance shall be applicable to the Senior Debt Securities
of that series provided, that such New Bondsprovisions shall apply unless such
covenants are expressly stated to be issued in whole or in part in book-entry
forminapplicable to the Senior Debt
Securities of that series; and
represented by one or more global New Bonds and, if so, the identity. any other terms of the depository for such global New Bonds andSenior Debt Securities of that Series.
(See Section 301.)
Periodic Offering: Senior Debt Securities of any series may be offered in a
periodic offering, in which any or all of the specific terms of the
depository arrangements therefor; and (x) any other termseach security of
such New Bonds,series may vary from other securities of such series, including with
respect to rate of interest, if any, series,thereon, the stated maturity thereof, the
redemption provisions, if applicable, any, consents to
modifications or waivers of covenants contained in the 1993 Mortgage or the
1939 Mortgage (as defined below).
PAYMENT OF BONDS; TRANSFERS; EXCHANGES: Exceptand such other terms as may be permitted by the
Indenture and determined by us from time to time as provided in the Indenture
and set forth in a supplement to this prospectus.
Original Issue Discount Security: A Senior Debt Security may provide that
an amount less than the principal amount thereof would be due and payable if it
were to be accelerated because of an event of default. Senior Debt Securities
containing such a provision would be offered and sold at a substantial discount
below their principal amount. Special federal income tax, accounting and other
considerations relating to those securities will be described in the applicable
Prospectus Supplement or anyprospectus supplement.
Payment of Senior Debt Securities; Transfers; Exchanges: Unless the
prospectus supplement thereto,that describes a particular series of Senior Debt
Securities says otherwise with respect to that series, interest, if any, on each
BondSenior Debt Security payable on each Interest Payment Dateinterest payment date will be paid to the
person in whose name such Bondthe Senior Debt Security 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.
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, ifmaturity. If there has been a default in the payment of interest on any
Bond,Senior Debt Security, such defaulted interest may be payablepaid to the Holderholder of such Bondthe
Senior Debt Security as of the close of business on a date selected by the
1993 Mortgage Trustee which isSenior Debt Security Trustee. The date selected must not be more than 3015 days
and not less than 10 days prior to the date proposed by the Companyus for payment of such
defaulted interest. Defaulted interest ormay also be paid in any other lawful
manner not inconsistent with
thepermitted by requirements of any securities exchange on which such Bondthe Senior
Debt Security may be listed, if the 1993 Mortgage Trustee deems such manner of payment
practicable. (See Section 307.)
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Unless the prospectus supplement that describes a particular series of
Senior Debt Securities says otherwise specified in a Prospectus Supplement or supplement
thereto,with respect to that series, the principal
of and premium, if any, and interest on the Bonds at Maturitymaturity will be payable upon
presentation of the BondsSenior Debt Securities at the corporate trust office of First TrustThe
Bank of New York, National Association, in New York, New York, as our Paying Agent for the Company. The CompanyAgent. We may change the
Placeplace of Payment on the Bonds,payment. We may appoint one or more additional Paying Agents
(including the Company)paying agents and may
remove any Paying Agent,paying agent, all at itsour discretion. (See Section 602 and Article One of the Supplemental Indenture(s)
relating to the New Bonds.1002.)
Unless the prospectus supplement that describes a particular series of
Senior Debt Securities says otherwise specified in a Prospectus Supplement or supplement
thereto,with respect to that series, the transfer
of BondsSenior Debt Securities may be registered, and BondsSenior Debt Securities may be
exchanged for other BondsSenior Debt Securities of the same series and tranche, of
authorized denominations and of like tenor and aggregate principal amount, at
the corporate trust office of First TrustThe Bank of New York, National Association, in New York, New York, as
Security Registrar for the Bonds. The Companysecurity registrar. We may change the place for registration ofor transfer and
exchange of the Bonds, andexchange. We may designate one or more additional places for such registration
and exchange, all at itsour discretion. (See Section 602.Sections 305 and 1002.)
Except asUnless the prospectus supplement that describes a particular series of
Senior Debt Securities says otherwise provided in the
applicable Prospectus Supplement or a supplement thereto,with respect to that series, no fee for
service charge will be -7-
madecharged for any transfer or exchange of the Bonds,Senior Debt
Securities, but the Companywe 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 willsecurities. We are not be required to execute or to
provide for the registration of transfer of or the exchange of (a) any BondSenior
Debt Security during a period of 15 days prior to giving any notice of
redemption or (b) any BondSenior Debt Security selected for redemption in whole or
in part, except the unredeemed portion of any BondSenior Debt Security being
redeemed in part. (See Section 305.)
REDEMPTION:Redemption: Any terms for the optional or mandatory redemption of New
Bondsa
particular series of Senior Debt Securities will be set forth in the Prospectus Supplement or aprospectus
supplement thereto.
Except as shall otherwise be provided inthat describes that series. Unless the applicable Prospectus Supplement
or aprospectus supplement thereto with respect to Bondssays
that Senior Debt Securities are redeemable at the option of the
Holder, Bondsa holder, Senior
Debt Securities will be redeemable only at our option upon notice by mail not less thanat
least 30
nor more than 60 days prior to the date fixed for redemption, and, if lessredemption. If fewer than all the
BondsSenior Debt Securities of a series or any tranche thereof, are to be redeemed, the particular BondsSenior
Debt Securities 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 sucha method of random selection,
substantially pro rata, chosen by the Trustee as the Security Registrar deemsbeing fair and appropriate.appropriate and
which complies with the requirement of the principal national securities
exchange, if any, on which the Senior Debt Securities are listed. If the Senior
Debt Securities to be redeemed have different terms and different maturities, we
may select the particular Senior Debt Securities to be redeemed. (See Sections
5031103 and 504.1104.)
AnyIf redemption is at our option, the notice of redemption at the option of the Company may state that
such redemption will be conditional upon receipt by the Paying Agentpaying agent or Agents,agents,
on or prior to the date fixed for such redemption, of money sufficient to payredeem
all of the principal of and premium, if any, andSenior Debt Securities called for redemption, including accrued
interest, if any,
on such Bonds and that if suchany. If no money has not been so received, suchthe notice will not be
of no forceeffective and effect and the Companywe 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.
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
-8-
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.
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 than by application of the
proceeds of a payment in respect of such Class A
-9-
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 a mortgage shall have merged
into or consolidated with the Company, or shall have conveyed or otherwise
transferred property to the Company subject to the lien of such a mortgage
and the Company shall have assumed all the obligations of the mortgagor
thereunder, and in either case such 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".
LIEN OF THE 1993 MORTGAGE. In the opinion of LeBoeuf, Lamb, Greene &
MacRae, L.L.P., 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 such 1939 Mortgage is in effect, the 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
-10-
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 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 whatsoever 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;
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; furniture and furnishings; computers, machinery and
telecommunication and other equipment used exclusively for corporate
administrative or clerical purposes; coal, ore, gas, oil and other minerals
and timber, and rights and interests in any such minerals or timber, whether
or not such minerals or timber have been mined or extracted or otherwise
separated 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 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 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.
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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;
(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 Class A Bonds or (ii) as provided in (c) above.
In general, the interest requirement with
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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 cancelled by the 1993 Mortgage Trustee);
(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
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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.)
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
(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,
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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, 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
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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 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 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[s] 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.)
EVENTS OF DEFAULT: Each of the following events constitutes an Event of
Default under the 1993 Mortgage:
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(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.)
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
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(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 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
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may require adequate indemnity against costs, expenses and liabilities to be
incurred in connection therewith. (See Sections 1011 and 1101.)
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 moneys 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, depository 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.
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 1993 Mortgage Trustee will become effective until the
acceptance of appointment by a successor 1993 Mortgage 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
1993 Mortgage 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 1993 Mortgage Trustee in accordance with the 1993 Mortgage. (See
Section 1110.)
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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. Capitalized
terms used under this heading which are not otherwise defined hereunder 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 article and section numbers of the Original 1939 Mortgage.
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 LeBoeuf, Lamb, Greene & MacRae, L.L.P., based on information obtained
from public records and from the Company, 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
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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".
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 December 31, 1997,
and the amount of retired bonds as of December 31, 1997, 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 $758,333,879 and
$669,480,000, 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 December 31, 1997,
$1,424,417,000 in aggregate principal amount of bonds were outstanding under the
1939 Mortgage, $822,167,000 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 a 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".
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 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
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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.
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 must have been acquired or constructed within five years;
(ii) to remove the requirement that certificates delivered to
the 1939 Mortgage Trustee be verified;
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(iii) to liberalize the requirements for publication of notices
of redemption and other notices;
(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 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";
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(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 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 Mortgage Securities)
aggregating $423,500,000 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
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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.)
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.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities may be issued, from time to time, in one or more series
and will constitute either Senior Debt Securities or Subordinated Debt
Securities. The Debt Securities will be unsecured obligations of the Company.
The Senior Debt Securities and the Subordinated Debt Securities will be issued
under separate indentures although the description of the Indentures herein
applies to both Indentures unless specifically stated otherwise. The Senior
Debt Securities will be issued under an Indenture (the "Senior Debt Securities
Indenture"), between the Company and The Bank of New York, as trustee (the
"Senior Debt Securities Trustee"). The Subordinated Debt Securities will be
issued under an Indenture (the "Subordinated Debt Securities Indenture"),
between the Company and The Bank of New York, as trustee (the "Subordinated Debt
Securities Trustee"). The Indentures are subject to being qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). A form of
each of the Indentures is filed as an exhibit to the Registration Statement of
which this Prospectus is a part.
The Senior Debt Securities Indenture and the Subordinated Debt Securities
Indenture are referred to herein individually as an "Indenture" and,
collectively, as the "Indentures", and the Senior Debt Securities Trustee and
the Subordinated Debt Securities Trustee are referred to herein as the
"Indenture Trustee".
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The following summaries of certain provisions of the Debt Securities and
the Indentures do not purport to be complete and are subject to, and are
qualified in their entirety by the detailed provisions of the Indentures,
including the definitions therein of certain terms. Certain capitalized terms
used under this heading which are not otherwise defined hereunder shall have the
meanings ascribed thereto in the Indentures. Whenever particular provision of
the Indentures 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 article and section numbers of the Indentures.
GENERAL: The Debt Securities will be unsecured obligations of the Company.
The Indentures do not limit the aggregate principal amount of Debt Securities
which may be issued thereunder, nor do they limit the incurrence or issuance of
other secured or unsecured debt of the Company. Debt Securities may be issued
under the Indentures, from time to time, in one or more series.Securities. (See
Section 301.1104.)
The Debt Securities will rank PARI PASSU in right of payment with all other
unsecured indebtedness of the Company, except that the Senior Debt Securities
will be senior in right of payment to any subordinated indebtedness which, by
its terms, is subordinate to the Senior Debt Securities, including the
Subordinated Debt Securities.
Reference is made to the Prospectus Supplement relating to the Debt
Securities being offered (the "Offered Debt Securities") for, among other
things, the following terms thereof: (i) the title of the Offered Debt
Securities; (ii) any limit on the aggregate principal amount of the Offered Debt
Securities; (iii) whetherConsolidation, Merger or not the Debt Securities will be issued in global
form and the terms thereof and the depository therefor; (iv) the date or dates
on which the Offered Debt Securities will mature; (v) the rate or rates (which
may be fixed or variable) per annum at which the Offered Debt Securities will
bear interest or the method by which such rate or rates shall be determined and
the date from which such interest will accrue or the method by which such date
or dates shall be determined; (vi) the dates on which such interest will be
payable and the Regular Record Dates for such Interest Payment Dates or the
method of determining such dates; (vii) the date or dates, if any, on which, and
the price or prices at which, the Offered Debt Securities may, pursuant to any
mandatory or optional sinking fund provisions or otherwise, be redeemed by the
Company and other detailed terms and provisions thereof; (viii) the date, if
any, after which, and the price or prices at which, the Offered Debt Securities
may, pursuant to any optional redemption provisions, be redeemed at the option
of the Company or of the Holder thereof and other detailed terms and provisions
of any such optional redemption; (ix) the right of the Company, if any, to defer
payment of interest on the Subordinated Debt Securities and the maximum length
of any such deferral period; (x) the denominations in which the Offered Debt
Securities will be issued, if other than denominations of $1,000 and any
integral multiple thereof; (xi) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, which will
be payable upon declaration of acceleration of the maturity thereof;
(xii) additional Events of Default with respect to the Offered Debt Securities,
if any, other than those set forth in the appropriate Indenture; (xiii) the
currency or currencies or units based on or related to currencies in which the
Offered Debt Securities shall be denominated, and in which payments or principal
of, and any premium and interest on such Offered Debt Securities will be
payable, if other than U.S. dollars; (xiv) additional covenants, if any, with
respect to the Offered Debt Securities other than those set forth in the
appropriate Indenture; (xv) the identity of the Registrar or any Paying Agent,
if other than the Trustee; (xvi) any exceptions to provisions in the appropriate
Indenture relating to legal holidays or the definition of "Business Day" with
respect to the Offered Debt Securities; and (xvii) any other terms of the
Offered Debt Securities (which terms shall not be inconsistent with the
appropriate Indenture). For a description of the terms of the Offered Debt
Securities, reference must be made to both the Prospectus Supplement relating
thereto and to the description of Debt Securities set forth herein. (See
Section 301.)Sale: The Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount below their
principal amount. Special federal income tax, accounting
-27-
and other considerations applicable to any such Original Issue Discount
Securities will be described in any Prospectus Supplement relating thereto.
"Original Issue Discount Security" means any security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof as a result of the
occurrence of an Event of Default and the continuation thereof. (See
Section 101.)
Debt Securities of any series may be offered in a Periodic Offering, in
which any or all of the specific terms of each Security of such series may vary
from other Securities of such series, including with respect to rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof, the
redemption provisions, if any, and such other terms as may be permitted by the
Indenture and determined by the Company from time to time as provided in the
Indentures.
CONSOLIDATION, MERGER OR SALE BY THE COMPANY: Each Indenture provides that the Company shallwe will not
consolidate with, merge with or into any other corporation, (whetherwhether or not the Company shall bewe
are the surviving corporation),corporation, or sell, assign, transfer or lease all or
substantially all of itsour properties and assets as an entirety or
-8-
substantially as an entirety to any person or group of affiliated persons, in
one transaction or a series of related transactions, unless:
. either we are the continuing person or the person, if other than us,
formed by such consolidation or with which or into which we are merged
or the person, or group of affiliated persons, to which all or
substantially all of our properties and assets as an entirety or
substantially as an entirety to any Person or group of
affiliated Persons, in one transaction or a series of related transactions,
unless: (i) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or with which or into which
the Company is merged or the Person (or group of affiliated Persons) to which
all or substantially all the properties and assets of the Company are sold, assigned, transferred or leased
is a corporation, (oror constitute corporations)corporations, organized under the laws
of the United States or any State thereof or the District of Columbia
and expressly assumes, by an indenture supplemental to the Indenture,
all theof our obligations of the Company under the Senior Debt Securities issued
thereunder and the Indenture, executed and delivered to the Indenture Trustee in
a form satisfactory to the Indenture Trustee;
(ii). immediately before and after giving effect to such transaction or
series of transactions, no Eventevent of Default,default, and no Default,default, shall
have occurred and be continuing; (iii) the
Company shall have deliveredand
. we deliver to the Indenture Trustee an Officer's Certificateofficer's certificate and an Opinionopinion of
Counsel, eachcounsel stating that such consolidation, merger or transfer and such
supplemental indenturesindenture comply with the Indenture; and (iv)
such other conditions as may be established in connection with the issuance of
the applicable Debt Securities.Indenture. (See Article Eight.)
EVENTS OF DEFAULT AND NOTICE THEREOF:Events of Default and Notice Thereof: The following are Eventsevents of Defaultdefault
under the IndenturesIndenture with respect to Senior Debt Securities of any series issued
thereunder:
(i). our failure by the Company to pay interest on any Senior Debt Security of that series
when due and such failure continues for 30 days; (ii)days and the time for
payment has not been extended or deferred;
. our failure by the
Company to pay the principal of, (oror premium, if any, on)on, any
Senior Debt Security of that series when due and payable at Maturity, includingmaturity,
and upon redemption but excluding any failure by the Companyus to deposit money
in connection with any redemption at our option, and the option of the Company; (iii)time for
payment has not been extended or deferred;
. our failure by the Company to observe or perform any other covenant, warranty or
agreement contained in the Senior Debt Securities of that series or in
the Indenture, (otherother than a covenant, agreement or warranty included
in the Indenture solely for the benefit of Senior Debt Securities
other than that series),series, and such failure continues for a period of 60 days after
written notice has been received by the Companyus from the Indenture Trustee or Holdersholders of
at least 25% in aggregate principal amount of the Outstandingoutstanding Senior
Debt Securities of that series;
(iv). certain events of bankruptcy, insolvency or reorganization relating to
the Company; (v)us;
. our failure by the Company to pay any installment of interest when due on any other
series of Senior Debt SecuritySecurities issued underpursuant to the Indenture and
such failure continues for 30 days, or our failure to pay the
principal of, or premium, if any, on any such other series of Senior
Debt Security issued under the IndentureSecurities when the same
shall become due and payable at Maturity (includingmaturity, including upon
redemption
-9-
but excluding any failure by the Companyus to deposit money in connection with
any redemption at theour option, of the Company) and the time for payment of such
interesthas not been
extended or principal shall not have been extended;deferred; and
(vi). any other Eventevent of Defaultdefault with respect to Senior Debt Securities of
that series specified in the Prospectus Supplement relating thereto or Supplemental Indenture under which
such series of Debt Securities is issued.applicable prospectus supplement.
(See Section 501.)
The Indentures provideIndenture provides that the Trustee thereunder shall, within 30 days after the
occurrence of any Defaultdefault or Eventevent of Defaultdefault with respect to Senior Debt
Securities of any series issued thereunder, give the Holdersholders of -28-
Senior Debt
Securities of that series notice of all uncured Defaultsdefaults or Eventsevents of Defaultdefault
known to it (the term "Default""default" includes any event which after notice or passage
of time or both would be an Eventevent of Default)default); provided, however, that, except
in the case of an Eventevent of Defaultdefault or a Defaultdefault in payment on any Senior Debt
Securities of any series, the Indenture Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
directors or Responsible Officersresponsible officers of the Indenture Trustee in good faith determine that
the withholding of such notice is in the interest of the Holdersholders of Senior Debt
Securities of the affected series. (See Section 602.)
If an Eventevent of Defaultdefault with respect to Senior Debt Securities of any
series, (otherother than due to events of bankruptcy, insolvency or reorganization)reorganization,
occurs and is continuing, the Indenture Trustee or the Holdersholders of at least 25% in
aggregate principal amount of the Outstandingoutstanding Senior Debt Securities of that
series, by notice in writing to the Company (andus, and to the Indenture Trustee if given by the Holdersholders
of at least 25% in aggregate principal amount of the Senior Debt Securities of
that series),series, may declare the unpaid principal of and accrued interest if any, to the
date of acceleration, (or,or, if the Senior Debt Securities are Original Issue
Discount Securities, such portion of that principal as may be specified in the
terms thereof)thereof, on all the Outstandingoutstanding Senior Debt Securities of that series to
be due and payable immediately and, upon any such declaration, the Senior Debt
Securities of that series, or specified principal amount, shall become
immediately due and payable. (See Section 502.)
If an Eventevent of Defaultdefault occurs due to bankruptcy, insolvency or
reorganization, all unpaid principal of and accrued interest on the Outstandingoutstanding
Senior Debt Securities of all series will become immediately due and payable
without any declaration or other act on the part of the Indenture Trustee or any Holderholder of
any Senior Debt Security. (See Section 502.)
Any such declaration with respect to Debt Securities of any series may be
annulled and past Events of Default and Defaults (except, unless theretofore
cured, an Event of Default or a Default in payment of principal of or interest
on the Debt Securities of that series) may be waived by the HoldersThe holders of a majority of the principal amount of the Outstandingoutstanding Senior
Debt Securities of that series, upon the conditions provided in the Indenture.Indenture,
may rescind an acceleration and its consequences. (See Section 513.)
If the Subordinated Debt Securities of any series are then held by a
statutory trust created by the Company for the purpose of issuing preferred
securities and common securities and purchasing a series of Subordinated Debt
Securities with the proceeds thereof, each holder of the preferred securities of
the trust may bring suit directly against the Company for the enforcement of
payment to such holder in respect of the Subordinated Debt Securities of such
series held by the trust in a principal amount equal to the aggregate
liquidation amount of the preferred securities held by such holder. At least a
majority of such holders of preferred securities of the trust must consent to
any waiver of an Event of Default with respect to the series of Subordinated
Debt Securities held by the trust and each such holder must consent to any
supplemental indenture that would adversely affect the interests of such
holders. (See Sections 502, 508, 513 and 902.502.)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in theif an event an Event of Defaultdefault shall occur and be continuing, the Trustee will
be under no obligation to exercise any of its
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rights or powers under the Indenture at the request or direction of any of the
Holders,holders, unless such Holdersholders have offered to the Trustee reasonable indemnity.
(See Section 603.) The Holdersholders of a majority in principal amount of the
Outstandingoutstanding Senior Debt Securities of any series will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Senior Debt Securities of that series; provided that (i) such
direction is not in conflict with any law or the Indenture; (ii) the Indenture Trustee may
take any other action deemed proper by the Indenture Trustee which is not inconsistent
with such direction; and (iii) subject to its duties under the Trust Indenture
Act, the Indenture Trustee need not take any action that might involve the Indenture Trustee in
personal liability or might be unduly prejudicial to the Holdersholders not joining
therein. (See Section 512.)
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No Holderholder of the Senior Debt Securities of any series will have any right
to institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless (i) such Holderholder has previously given to the Trustee written notice of a
continuing Eventevent of Defaultdefault with respect to the Senior Debt Securities of that
series, (ii) the Holdersholders of at least 25% in aggregate principal amount of the
Outstandingoutstanding Senior Debt Securities of that series have made written request, and
such Holderholder or Holdersholders have offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee and (iii) the Trustee has failed to
institute such proceeding, and has not received from the Holdersholders of a majority
in aggregate principal amount of the Outstandingoutstanding Senior Debt Securities of that
series a direction inconsistent with such request, within 60 days after such
notice, request and offer. However, suchSuch limitations do not apply to a suit instituted by
a Holderholder of a Senior Debt Security for the enforcement of payment of the
principal of or any premium or interest on such Debt Securitydebt security on or after the
applicable due date specified in such Senior Debt Security. (See Sections 507
and 508.)
The Indentures provideIndenture provides that the Company shallwe must periodically file statements with the
Indenture Trustee regarding compliance by the Companyus with certainall conditions and covenants of the
covenants therein and shall specify any Event of Default or Defaults with
respect to Debt Securities of any series outstanding thereunder, in performing
such covenants, of which the signers may have knowledge.therein. (See Section 704.)
MODIFICATION OF INDENTURES; WAIVER: The Indentures may be modified by the
CompanyModification of Indenture: We and the applicableTrustee may modify the Indenture,
Trustee without notice to or the consent of any Holdersholders of Senior Debt Securities, with
respect to certain matters, including (i)including:
. to add one or more covenants or other provisions for the benefit of
holders of Senior Debt Securities of one or more series or tranches or
to surrender any of our rights or powers under the Indenture;
. to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision which may be inconsistent with any other
provision of the Indenture and (ii)Indenture; or
. to make any change that does not materially adversely affect the
interests of any Holderholder of Senior Debt Securities of any series.
In addition, underwe, together with the Indentures,Senior Debt Trustee, may modify certain
of our rights and obligations of the Company and the rights of Holdersholders of the Senior Debt
Securities may be modified by the Company and the Indenture Trustee with the
written consent of the Holdersholders of at least a majority in aggregate
principal amount of the Outstandingoutstanding Senior Debt Securities of each series or
tranche affected thereby;
PROVIDED that nothereby.
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If the Trust Indenture Act is amended after the date of the original
Indenture in such modificationa way as to require or permit changes to the Indenture, or the
elimination of provisions which, at the date of the original Indenture or at any
time thereafter were required by the Trust Indenture Act, the Indenture will be
automatically amended to conform to such amendment or to make such changes or
elimination. The Trustee shall, at our request, enter into one or more
supplemental indentures with us to evidence or effect such amendment. (See
Section 901.)
No amendment or modification may, without the consent of each Holderholder of any
Outstandingoutstanding Senior Debt Security affected thereby, (i)affected:
. change the Stated
Maturitystated maturity of the principal of, or any installment of
principal of or interest on, any such Senior Debt Security;
(ii). reduce the principal amount of, or the rate of interest on, or any
premium payable upon the redemption of, or extend the time for payment
of, any such Senior Debt Security, or extent the time for payment of
those amounts or reduce the amount of principal of an Original Issue Discount
Securityoriginal issue
discount security that would be due and payable upon declaration of
acceleration of the Maturitymaturity thereof;
(iii). change the place of payment, or the coin or currency, for payment of
principal (orof, or premium, if any)any, or interest on any Senior Debt
Security;
(iv). impair the right to institute suit for the enforcement of any payment
on or with respect to any such Senior Debt Security;
(v). reduce the percentage in principal amount of outstanding Senior Debt
Securities of any series necessary to modify or amend the Indenture,
or to waive compliance with certain provisions of the Indenture or
defaults or events of default thereunder and their consequences;
. change the redemption provisions in a manner adverse to any such
holder of Senior Debt Securities of that series; or
. modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain covenants; (vi) modifycovenants
except to increase the percentage of holders required to consent or
waive or to provide that certain other provisions may not be modified
or waived without the consent of each holder affected thereby.
(See Article Nine.)
Waiver: The holders of not less than a majority in aggregate principal
amount of the Indenture with
respect to the subordination of the Debt Securities in a manner adverse to the
holders; (vii) reduce the above-stated percentage of outstanding Senior Debt Securities of any series necessarymay on behalf of
the holders of all Senior Debt Securities of that series waive any default or
event of default with respect to modifythat series, except a default or amendevent of
default in the Indentures,payment of the principal of, or premium, if any, or any interest
on any Senior Debt Securities of that series or in respect of a provision which
under the Indenture cannot
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be modified or amended without the consent of the holder of each outstanding
Senior Debt Securities of that series affected (See Section 513.)
Defeasance: So long as no default or event of default with respect to waive
compliance with certain provisions thereof or Defaults or Events of Default
thereunderthe
Senior Debt Securities has occurred and the consequences thereof; or (viii) change the redemption
provisions of any Debt Security in a manner adverse to such holder. (See
Article Nine.)
DEFEASANCE: The Companyis continuing, we may terminate itsour
substantive obligations in respect of Senior Debt Securities of any series
(except for itsour obligations to pay the principal of (and premium, if any, on)
and the interest on the Senior Debt Securities of that series) by (i)by:
. depositing with the applicable Indenture Trustee, under the terms of an irrevocable trust
agreement, money or U.S. Government Obligations or a combination
thereof sufficient to pay all remaining indebtedness on the Senior
Debt Securities of that series,
(ii). delivering to such Indenture Trustee either an Opinionopinion of Counselcounsel or a ruling
directed to the
Indenture Trustee from the Internal Revenue Service to the
effect that the Holdersholders of the Senior Debt Securities of that series
will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations,
and
(iii). complying with certain other requirements set forth in the Indenture.
(See Section 1304.)
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SUBORDINATION: For purposes ofConcerning the description of the Subordinated Debt
Securities, the term "Senior Indebtedness" shall mean the principal ofTrustee: We and premium, if any, and interest, if any, on the following, whether outstanding on
the date of execution of the Indenture or thereafter incurred or created:
(i) all obligations of the Company for money borrowed by the Company (including
Capital Lease Obligations and purchase money obligations with an original
maturity in excess of one year) or evidenced by debentures (other than Debt
Securities issued under the Subordinated Debt Securities Indenture), bonds,
notes, bankers' acceptances or other corporate debt securities or similar
instruments issued by the Company, (ii) all obligations of the Company with
respect to letters of credit; (iii) all obligations of the Company constituting
a guarantee or assumption of indebtedness of others of the type referred to in
the preceding clauses (i) and (ii), including through an agreement to purchase,
contingent or otherwise; (iv) all dividends of others for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise; (vi)
all obligations of the type referred to in clauses (i) through (iv) of others
secured by any property or asset of the Company (whether or not such obligation
is assumed by the Company), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; or (vi) renewals, extensions or refundings of any of the
obligations referred to in the preceding clauses (i) through (v); unless, in the
case of any particular obligation or renewal, extension or refunding thereof,
under the express provisions of the instrument creating or evidencing the same,
or pursuant to which the same is outstanding, such obligation or such renewal,
extension or refunding thereof is not superior in right of payment to or is PARI
PASSU with the Subordinated Debt Securities. The term "Capitalized Lease
Obligations" shall mean any obligation that is required to be classified and
accounted for as a capital lease on the face of a balance sheet of a Person
prepared in accordance with GAAP.
The payment of the principal of and premium, if any, and any interest on
the Subordinated Debt Securities (including making any deposit pursuant to the
provisions described under "Defeasance" or repurchasing, redeeming or otherwise
retiring any Subordinated Debt Securities) will, to the extent set forth in the
Subordinated Debt Securities Indenture, be subordinated in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. Upon any
payment or distribution of assets or securities to creditors upon any
dissolution, winding up, or total or partial liquidation or reorganization of
the Company whether voluntary or involuntary or in bankruptcy, insolvency,
receivorship or similar proceedings of the Company, the holders of all Senior
Indebtedness of the Company will first be entitled to receive payment in full in
cash or cash equivalents of the principal of, premium, if any, or any interest
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment or distribution in respect of the principal of,
premium, if any, or any interest on the Subordinated Debt Securities, and in the
event that, notwithstanding the foregoing, the Trustee under the Subordinated
Indenture or the Holder of any Subordinated Debt Security receives any payment
or distribution of assets of any kind or character before all Senior
Indebtedness of the Issuer is paid in full, or effective provision is made for
its payments, then such payment or distribution will be required to be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary to
pay all Senior Indebtedness of the Company then due in full.
No direct or indirect payment by or on behalf of the Company of principal
of, premium, if any, or interest on, the Subordinated Debt Securities, whether
pursuant to the terms of the Subordinated Debt Securities or upon acceleration
or otherwise, shall be made if, at the time of such payment, there exists (i) a
default in the payment of all or any portion of any Senior Indebtedness or (ii)
any other default pursuant to which the maturity of any Senior Indebtedness has
been accelerated and, in either case, requisite notice has been given to the
Subordinated Debt Securities Trustee and such default shall not have been cured
or waived by or on behalf of the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the Company,
the Holders of the Subordinated Debt Securities shall be subrogated to the
rights of holders of Senior Indebtedness of the Company to receive payments or
distributions or assets of the Company applicable to Senior Indebtedness of
-31-
the Company until the Subordinated Debt Securities are paid in full. As a
result of these subordination provisions, in the event of the Company's
insolvency, holders of the Subordinated Debt Securities may recover ratably
less than holders of Senior Indebtedness of the Company. (See Article
Fourteen of the Subordinated Debt Securities Indenture.) The Subordinated
Debt Securities Indenture provisions described in this paragraph, however, do
not prevent the Company from making a sinking fund payment with Subordinated
Debt Securities acquired prior to the maturity of Senior Indebtedness or, in
the case of default, prior to such default and notice thereof.
FORM, EXCHANGE, AND TRANSFER: The Debt Securities of each series will be
issuable only in fully registered form without coupons and, unless otherwise
specified in the applicable Prospectus Supplement, in denominations of $1,000
and any integral multiple thereof. (See Section 302.)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to global securities described in the applicable
Prospectus Supplement, Debt Securities of any series will be exchangeable for
other Debt Securities of the same series, of any authorized denomination and of
like tenor and aggregate principal amount. (See Section 305.)
Subject to the terms of the Indenture and the limitations applicable to
global securities set forth in the applicable Prospectus Supplement, Debt
Securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so
required by the Company or the Indenture Trustee) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
therewith. The Company has appointed the Trustee as Security Registrar. Any
transfer agent (in addition to the Security Registrar) initially designated by
the Company for any Debt Securities will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that the Company will be required
to maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (See Section 305.)
If the Debt Securities of any series are to be redeemed, the Company will
not be required to (i) issue, register the transfer of, or exchange any Debt
Security of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any such Debt
Security that may be selected for redemption and ending at the close of business
on the day of such mailing or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any such Debt Security being redeemed in part. (See Section 305.)
PAYMENT AND PAYING AGENTS: Unless otherwise indicated in the applicable
Prospectus Supplement, payment of the interest on a Debt Security on any
Interest Payment Date will be made to the Person in whose name such Debt
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on the Regular Record Date for such interest. (See Section 307.)
Principal of and any premium and interest on the Debt Securities of a
particular series will be payable at the office of such Paying Agent or Paying
Agents as the Company may designate with respect to the Debt Securities of such
series for such purpose from time to time, except that unless otherwise
indicated in the applicable Prospectus Supplement, payment of any interest may
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Security Register. Unless otherwise indicated in the
applicable Prospectus Supplement, the corporate trust office of the Trustee in
The City of New York will be designated as the Company's sole Paying Agent for
payments with respect to Debt Securities of each series. Any other Paying
Agents initially designated by the Company for the Debt Securities of a
particular series will be named in the applicable Prospectus Supplement. The
Company will be required to maintain a Paying Agent in each Place of Payment for
the Debt Securities of a particular series. (See Sections 307 and 1002.)
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All moneys paid by the Company to a Paying Agent for the payment of their
principal of or any premium or interest on any Debt Security which remains
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof. (See
Section 1008.)
CONCERNING THE INDENTURE TRUSTEE: The Company and itsour affiliates conduct banking transactions
with the Indenture Trustee in the normal course of business.
DESCRIPTION OF THE PREFERRED SECURITIES OF THE TRUST
GENERAL:Governing Law: The Trust may issue only one series of Preferred Securities which
shall have the terms described in the Prospectus Supplement relating thereto.
The Declaration authorizes the Administrative Trustee to issue on behalf of the
Trust one series of Preferred Securities. The Declaration will be qualified as
an indenture under the Trust Indenture Act. The Property Trustee, The Bank of
New York, an independent trustee, will act as indenture trustee for the
Preferred Securities to be issued by the Trust, for the purpose of compliance
with the provisions of the Trust Indenture Act. The proceeds from the sale of
the Preferred Securities and the Common Securities will be used by the Trust to
purchase a corresponding series of Subordinated Debt Securities from the
Company. The Subordinated Debt Securities of that series will be held in trust
by the Property Trustee for the benefit of the holders of the Trust Securities.
Pursuant to the Preferred Securities Guarantee, the Company will agree to make
payments of Distributions and payments on redemption or liquidation with respect
to such Preferred Securities, but only to the extent the Trust holds funds
available therefor and has not made such payments. See "DESCRIPTION OF THE
PREFERRED SECURITIES GUARANTEE". The following summary of the Trust, the
Declaration and the Preferred Securities of the Trust does not purport to be
complete and is subject to, and qualified in its entirety by the detailed
provisions of the Amended and Restated Declaration of Trust and Form of
Certificate of Preferred Securities, forms of which are filed as exhibits to the
Registration Statement of which this Prospectus is a part. Capitalized terms
used under this heading and not otherwise defined hereunder shall have the
meanings ascribed thereto in the Amended and Restated Declaration of Trust.
Wherever particular provisions or terms defined therein are referred to herein,
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.
It is anticipated that the assets of the Trust available for distribution
to the holders of its Preferred Securities will be limited to payments from the
Company under the Subordinated Debt Securities in which the Trust will invest
the proceeds from the issuance and sale of its Trust Securities. If the Company
fails to make a payment on such Subordinated Debt Securities, the Trust will not
have sufficient funds to make related payments, including Distributions, on the
Preferred Securities. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the Declaration or made part of the Declaration by the Trust Indenture Act, and
which will mirror the terms of the Subordinated Debt Securities held by the
Trust and as described in the Prospectus Supplement related thereto.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of the Trust for specific terms, including (i) the distinctive
designation of such Preferred Securities; (ii) the number of Preferred
Securities issued; (iii) the annual distribution rate or rates (or method of
determining such rate or rates) for Preferred Securities and the date or dates
upon which such distributions shall be payable; provided, however, that
distributions on such Preferred Securities shall be payable on a periodic basis
to holders of such Preferred Securities as of a record date in each period
during which such Preferred Securities are outstanding; (iv) whether
distributions on Preferred Securities shall be cumulative, and, in the case of
Preferred Securities having such cumulative distribution rights, the date or
dates or method of determining the date or dates from which distributions on
Preferred Securities shall be cumulative; (v) the obligation or option, if any,
of the Trust to purchase or redeem Preferred Securities and the price or prices
at which, the period or periods within which, and the terms and conditions upon
which, Preferred Securities shall be purchased or redeemed, in
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whole or in part, pursuant to such obligation or option (with such redemption
price to be determined through negotiations among the Company and the
underwriters based on, among other factors, redemption prices of securities
similar to the Preferred Securities and market conditions generally); (vi)
the terms and conditions, if any, upon which the Subordinated Debt Securities
may be distributed to holders of Preferred Securities; (vii) if applicable,
any securities exchange upon which the Preferred Securities shall be listed;
(viii) whether the Preferred Securities are to be issued in whole or in part
in book-entry form and represented by one or more global certificates, and if
so, the identity of the depository for such global certificates and the
specific terms of the depository arrangements therefor; and (ix) any other
relevant rights, preferences, privileges, limitations or restrictions of
Preferred Securities not inconsistent with the Declaration or with applicable
law. The Preferred Securities will be guaranteed by the Company to the
extent set forth below under "DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEE". The Preferred Securities Guarantee of the Company, when taken
together with the Company's obligations under the Subordinated Debt
Securities and the relevant Supplemental Indenture, and its obligations under
the Declaration, including obligations to pay costs, expenses, debts and
liabilities of the Trust (other than with respect to the Trust Securities),
would provide a full and unconditional guarantee of amounts due on Preferred
Securities issued by the Trust. Certain United States federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, the Trust will
issue one series of Common Securities. The Declaration authorizes the
Administrative Trustee to issue on behalf of the Trust one series of Common
Securities having such terms including distributions, redemption, voting,
liquidation rights or such restrictions as shall be set forth therein. The
terms of the Common Securities will be substantially identical to the terms of
the Preferred Securities issued by the Trust and the Common Securities will rank
PARI PASSU, and payments will be made thereon pro rata with the Preferred
Securities except that, upon the occurrence and during the continuance of an
event of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the PSCO Trustees. All of the Common Securities of the Trust will be
directly or indirectly owned by the Company.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION: Pursuant to the Declaration,
the Trust shall be dissolved on the earliest to occur of: (i) the expiration of
the term of the Trust; (ii) the bankruptcy, dissolution or liquidation of the
Company or an acceleration of the maturity of the corresponding series of
Subordinated Debt Securities held by the Trust; (iii) if provided for in the
accompanying Prospectus Supplement, upon the election of the Company to dissolve
the Trust and, after satisfaction of liabilities to creditors of the Trust,
cause the distribution of the corresponding series of Subordinated Debt
Securities to the holders of the Trust Securities; (iv) the redemption of all of
the Trust Securities; and (v) an order for the dissolution of the Trust shall
have been entered by a court of competent jurisdiction. The election of the
Company pursuant to clause (iii) above shall be made by the Company giving
written notice to the PSCO Trustees not less than 30 days prior to the date of
distribution of the corresponding series of Subordinated Debt Securities and
shall be accompanied by an opinion of counsel that such event will not be a
taxable event to the holders of the Trust Securities for federal income tax
purposes.
If a dissolution event occurs as described in clause (i), (ii), (iii) or
(v) above with respect to the Trust, the Trust shall be liquidated by the PSCO
Trustees as expeditiously as the PSCO Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the holders of its Trust Securities a like amount
of the Subordinated Debt Securities held by the Trust, unless such distribution
is determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Trust available for
distribution to holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to, in the case of holders
of Trust Securities, the aggregate liquidation amount per Trust Security
specified in the accompanying Prospectus
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Supplement plus accumulated and unpaid distributions thereon to the date of
payment (such amount, the "Liquidation Distribution"). If the Liquidation
Distribution with respect to the Preferred Securities can be paid only in
part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable by the Trust on
such Preferred Securities shall be paid on a pro rata basis. The holders of
the Trust's Common Securities will be entitled to receive the Liquidation
Distribution upon any such liquidation pro rata with the holders of its
Preferred Securities, except that if a Declaration Event of Default (defined
below) has occurred and is continuing the Preferred Securities shall have a
priority over the Common Securities with respect to payment of such
Liquidation Distribution.
DECLARATION EVENT OF DEFAULT; NOTICE: An Event of Default under the
Subordinated Debt Securities Indenture relating to the Subordinated Debt
Securities held by the Trust shall constitute a Declaration Event of Default
with respect to the Preferred Securities issued by the Trust under the
Declaration.
Within 90 days after the occurrence of any Declaration Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Declaration Event of Default to the holders of the Trust
Securities, the Administrative Trustee and the Company, unless such Declaration
Event of Default shall have been cured or waived. The Company and the
Administrative Trustee are required to file annually with the Property Trustee a
certificate as to whether or not they are in compliance with all the conditions
and covenants applicable to them under the Declaration.
Under the Declaration, if the Property Trustee has failed to enforce its
rights under the Declaration or the Subordinated Debt Securities Indenture, to
the fullest extent permitted by law and subject to the terms of the Declaration
and the Subordinated Debt Securities Indenture, any holder of the corresponding
Preferred Securities may institute a legal proceeding directly to enforce the
Property Trustee's rights under the Declaration or the Subordinated Debt
Securities Indenture with respect to Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder without first instituting a legal proceeding against
the Property Trustee or any other person. To the extent that any action under
the Subordinated Debt Securities Indenture is entitled to be taken by the
holders of at least a specified percentage of the principal amount of a series
of Subordinated Debt Securities, holders of the corresponding Preferred
Securities may take such action if such action is not taken by the Property
Trustee. Notwithstanding the foregoing, if a Declaration Event of Default
attributable to the Company's failure to pay principal of or premium, if any, or
interest on the Subordinated Debt Securities held by the Trust has occurred and
is continuing, then each holder of Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of any such payment to
such holder, all as provided in the Subordinated Debt Securities Indenture and
the Supplemental Indenture thereunder relating to the Subordinated Debt
Securities purchased by the Trust.
REMOVAL OF PSCO TRUSTEES: Unless a Declaration Event of Default has
occurred and is continuing, any PSCO Trustee may be removed and replaced at any
time by the holder of the Common Securities. If a Declaration Event of Default
has occurred and is continuing, the Property Trustee and the Delaware Trustee
may be removed and replaced at such time only by the holders of at least a
majority in aggregate liquidation amount of the outstanding Preferred
Securities. In no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustee, which
voting rights are vested exclusively in the holder of the Common Securities. No
resignation or removal of PSCO Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE: Unless a Declaration Event of
Default has occurred and is continuing, at any time and from time to time, for
the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property (as defined in the
Declaration) may at such time be located, the holder of the Common Securities
and the Administrative Trustee
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shall have the power (i) to appoint one or more persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such Trust Property, in either case with such powers as may be
provided in the instrument of appointment, and (ii) to vest in such person or
persons in such capacity any property, title, right or power deemed necessary
or desirable, subject to the provisions of the Declaration. If a Declaration
Event of Default has occurred and is continuing, only the Property Trustee
shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES: Any corporation or other
entity into which any PSCO Trustee may be merged or converted or with which it
may be consolidated, or any corporation or other entity resulting from any
merger, conversion or consolidation to which any PSCO Trustee shall be a party,
or any corporation or other entity succeeding to all or substantially all the
corporate trust business of any PSCO Trustee, shall be the successor of such
PSCO Trustee under the applicable Declaration, provided such corporation or
other entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST: The
Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any corporation or other entity, except as
described below or in "Liquidation Distribution Upon Dissolution". The Trust
may, at the request of the Company, with the consent of the Administrative
Trustee and without the consent of the holders of its Preferred Securities,
merge with or into, consolidate, amalgamate, or be replaced by a trust organized
as such under the laws of any State, provided that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
such Preferred Securities or (b) substitutes for such Preferred Securities other
securities substantially similar to such Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as such Preferred
Securities rank with respect to the payment of Distributions and payments upon
redemption and liquidation, (ii) the Company expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee with respect to the corresponding series of Subordinated Debt
Securities, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause such Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially similar to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation or replacement, the
Company has received an opinion of counsel to the Trust to the effect that (a)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation or replacement, neither the
Trust nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (viii) the Company or any permitted successor assignee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Preferred Securities Guarantee and Declaration.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
all holders of its Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by, any other entity, or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity not to be classified as a grantor trust for federal income tax
purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT: Except as provided below and
under "Mergers, Consolidations, Amalgamations or Replacements of the Trust" and
"DESCRIPTION OF THE GUARANTEE--Amendments and Assignment" and as otherwise
required by law and the Declaration, the holders of the Preferred Securities
will have no voting rights.
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The Declaration may be amended from time to time by the Company and the
PSCO Trustees, without the consent of the holders of the corresponding Preferred
Securities, (i) to cure any ambiguity, defect or inconsistency or (ii) to make
any other change that does not adversely affect in any material respect the
interests of any holder of such Preferred Securities. The Declaration may be
amended by the Company and the PSCO Trustees in any other respect, with the
consent of the holders of at least a majority in aggregate liquidation amount of
such Preferred Securities, except to (i) change the amount, timing or currency
or otherwise adversely affect the method of payment of any distribution or
Liquidation Distribution on the Trust Securities, (ii) restrict the right of a
holder of any such Preferred Security to institute suit for enforcement of any
distribution, Redemption Price or Liquidation Distribution on the Trust
Securities, (iii) change the purpose of the Trust, (iv) authorize the issuance
of any additional beneficial interests in the Trust, (v) change the redemption
provisions of the Trust Securities, (vi) change the conditions precedent for the
Company to elect to dissolve the Trust and distribute the Subordinated Debt
Securities to the holders of such Trust Securities or (vii) affect the limited
liability of any holder of such Preferred Securities, which amendment requires
the consent of each holder of the related Preferred Securities affected thereby.
Notwithstanding the foregoing, no amendment may be made without receipt by the
Trust of an opinion of counsel to the effect that such amendment will not affect
the Trust's status as a grantor trust for federal income tax purposes or its
exemption from regulation as an investment company under the Investment Company
Act.
The PSCO Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Subordinated Debt
Securities Indenture Trustee or executing any trust or power conferred on the
Subordinated Debt Securities Indenture Trustee with respect to the Subordinated
Debt Securities held by the Trust, (ii) waive any past default pursuant to
Section 513 of the Subordinated Debt Securities Indenture, (iii) exercise any
right to rescind or annul an acceleration of the principal of such Subordinated
Debt Securities, or (iv) consent to any amendment or modification of the
Subordinated Debt Securities Indenture, where such consent shall be required,
without, in each case, obtaining the prior consent of the holders of at least a
majority in aggregate liquidation amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Subordinated Debt
Securities Indenture would require the consent of each holder of Subordinated
Debt Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the Preferred Securities.
The PSCO Trustees shall not revoke any action previously authorized or approved
by a vote of the holders of such Preferred Securities except by subsequent vote
of the holders thereof. The Property Trustee shall notify all holders of
Preferred Securities of any notice received from the Subordinated Debt
Securities Indenture Trustee as a result of the Trust being the holder of the
Subordinated Debt Securities. In addition to obtaining the consent of the
holders of the Preferred Securities, prior to taking any of the foregoing
actions, the PSCO Trustees shall obtain an opinion of counsel to the effect that
the Trust will not be classified as an association taxable as a corporation or a
partnership for federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for federal income tax purposes.
Any required consent of holders of Preferred Securities may be given at a
meeting of holders of such Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of such Preferred Securities in the manner set
forth in the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under certain circumstances, any Preferred Securities that are owned
by the Company, the PSCO Trustees or any affiliate of the Company or any PSCO
Trustee shall, for purposes of such vote or consent, be treated as if they were
not outstanding.
INFORMATION CONCERNING THE PROPERTY TRUSTEE: The Property Trustee is the
sole trustee under the Declaration for purposes of the Trust Indenture Act and
shall have and be subject to all of the duties and responsibilities specified
with respect to an indenture trustee under the Trust Indenture Act. The
Property
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Trustee, other than during the occurrence and continuance of a Declaration
Event of Default, undertakes to perform only such duties as are specifically
set forth in the Declaration and, upon a Declaration Event of Default, must
use the same degree of care and skill in the exercise thereof as a prudent
person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of
any holder of Preferred Securities unless it is offered reasonable security
or indemnity against the costs, expenses and liabilities that might be
incurred thereby. If no Declaration Event of Default has occurred and is
continuing, and the Property Trustee is required to decide between
alternative courses of action, construe ambiguous provisions in the
Declaration or is unsure of the application of any provision of the
Declaration, and the matter is not one on which holders of Preferred
Securities are entitled under the Declaration to vote, then the Property
Trustee shall take such action as is directed by the Company and, if not so
directed, may take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own negligent action, negligent failure to act or willful
misconduct.
MISCELLANEOUS: The Administrative Trustee is authorized and directed to
conduct the affairs of and to operate the Trust in such a way that (i) it will
not be deemed to be an "investment company" required to be registered under the
Investment Company Act or to be taxed as a corporation or partnership for
federal income tax purposes, (ii) it will be classified as a grantor trust for
federal income tax purposes and (iii) the Subordinated Debt Securities held by
it will be treated as indebtedness of the Company for federal income tax
purposes. In this connection, the Company and the Administrative Trustee are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the Trust or the Declaration, that the Company and the
Administrative Trustee determine in their discretion to be necessary or
desirable for such purposes, even if such action adversely affects the interests
of the holders of the Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any of
its assets.
Except as otherwise provided in the Declaration, any action requiring the
consent or vote of the PSCO Trustees shall be approved by the Administrative
Trustee.
GOVERNING LAW: The Declaration will be governed by and construed in
accordance with the laws of the State of Delaware.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will be executed and delivered by the
Company concurrently with the issuance by the Trust of its Preferred Securities
for the benefit of the holders from time to time of such Preferred Securities.
The Preferred Securities Guarantee will be qualified as an indenture under the
Trust Indenture Act and The Bank of New York will act as indenture trustee (the
"Preferred Securities Guarantee Trustee") under the Preferred Securities
Guarantee for the purposes of compliance with the Trust Indenture Act. The
Preferred Securities Guarantee Trustee will hold the Preferred Securities
Guarantee for the benefit of the holders of the Preferred Securities issued by
the Trust. The following summary of the Preferred Securities Guarantee does not
purport to be complete and is qualified in its entirety by the detailed
provisions of the Preferred Securities Guarantee, a form of which is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
Capitalized terms used under this heading and not otherwise defined hereunder
shall have the meanings ascribed thereto in the Preferred Securities Guarantee.
Whenever particular provisions or terms defined therein are referred to herein,
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.
GENERAL: The Company will irrevocably agree, to the extent set forth in
the Preferred Securities Guarantee, to pay in full, to the holders of the
Preferred Securities issued by the Trust, the Preferred
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Securities Guarantee Payments (as defined below) (except to the extent
previously paid), as and when due, regardless of any defense, right of
set-off or counterclaim which the Trust may have or assert. The following
payments, to the extent not paid by the Trust (the "Preferred Securities
Guarantee Payments"), will be subject to the Preferred Securities Guarantee
(without duplication): (i) any accumulated and unpaid Distributions required
to be paid on such Preferred Securities, to the extent that the Trust has
funds available therefor, (ii) the redemption price (the "Redemption Price")
and all accrued and unpaid Distributions to the date of redemption to the
extent that the Trust has funds available therefor, and (iii) upon a
voluntary or involuntary dissolution and liquidation of the Trust (other than
in connection with a distribution of Subordinated Debt Securities to holders
of such Preferred Securities or the redemption of all such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount
specified in the Prospectus Supplement per Preferred Security plus all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Trust has funds available therefor and (b) the
amount of assets of the Trust remaining available for distribution to
holders of Preferred Securities upon a dissolution and liquidation of the
Trust (the "Liquidation Payment"). The Company's obligation to make a
Preferred Securities Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of the Preferred
Securities or by causing the Trust to pay such amounts to such holders.
While the assets of the Company will not be available pursuant to the
Preferred Securities Guarantee for the payment of any distribution,
Liquidation Payment or Redemption Price on any Preferred Securities if the
Trust does not have funds available therefor as described above, the Company
has agreed under the Declaration to pay all expenses of the Trust except the
Trust's obligations under its Preferred Securities. Accordingly, the
Preferred Securities Guarantee, together with the backup undertakings
consisting of the Company's obligations under the Declaration, the
corresponding series of Subordinated Debt Securities and the relevant
Supplemental Indenture provide for the Company's full and unconditional
guarantee of the Preferred Securities.
No single document executed by the Company in connection with the
issuance of the Preferred Securities will provide for the Company's full and
unconditional Preferred Securities Guarantee of the Preferred Securities.
It is only the combined operation of the Company's obligations under the
Preferred Securities Guarantee, the Declaration, the corresponding series of
Subordinated Debt Securities and the relevant Supplemental Indenture that has
the effect of providing a full and unconditional guarantee of the Trust's
obligations under its Preferred Securities.
STATUS OF THE PREFERRED SECURITIES GUARANTEE: The Preferred Securities
Guarantee will constitute an unsecured obligation of the Company and will rank
(a) subordinate and junior in right of payment to all general liabilities of the
Company, (b) PARI PASSU with the senior most preferred stock now or hereafter
issued by the Company and with any guarantee now or hereafter issued by the
Company in respect of preferred stock of any affiliate of the Company and (c)
senior to the Company's common stock. The Declaration provides that each holder
of Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee. The Preferred
Securities Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Preferred Securities
Guarantee without first instituting a legal proceeding against any other person
or entity). The Preferred Securities Guarantee will not be discharged except by
payment of the Preferred Securities Guarantee Payments in full to the extent not
previously paid or upon distribution to the holders of the Preferred Securities
of the corresponding series of Subordinated Debt Securities pursuant to the
Declaration.
AMENDMENTS AND ASSIGNMENT: Except with respect to any changes which do not
adversely affect the rights of holders of the Preferred Securities in any
material respect (in which case no consent of the holders will be required), the
Preferred Securities Guarantee may not be amended without the prior approval of
the holders of at least a majority in aggregate liquidation amount of the
Preferred Securities (excluding any Preferred Securities held by the Company or
an affiliate thereof). The manner of obtaining any such approval will be as set
forth under "DESCRIPTION OF THE PREFERRED SECURITIES OF THE TRUST -- Voting
Rights; Amendment of Trust Agreement". All guarantees and agreements contained
in the Preferred Securities
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Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders
of the Preferred Securities.
PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT: An event of default
under the Preferred Securities Guarantee (a "Preferred Securities Guarantee
Event of Default") will occur upon the failure of the Company to perform any of
its payment or other obligations thereunder, provided that except with respect
to the Preferred Securities Guarantee Event of Default resulting from a failure
to make any of the Preferred Securities Guarantee Payments, the Company shall
have received notice of such Preferred Securities Guarantee Event of Default
from the Preferred Securities Guarantee Trustee and shall not have cured such
Preferred Securities Guarantee Event of Default within 60 days after receipt of
such notice. The holders of at least a majority in aggregate liquidation amount
of the Preferred Securities (excluding any Preferred Securities held by the
Company or an affiliate thereof) will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee in respect of such Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Securities Guarantee Trustee under the Preferred Securities Guarantee.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Company to enforce such holder's rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against the
Trust, the Preferred Securities Guarantee Trustee or any other person or entity.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE: The
Preferred Securities Guarantee Trustee, other than during the occurrence and
continuance of a Preferred Securities Guarantee Event of Default, undertakes to
perform only such duties as are specifically set forth in the Preferred
Securities Guarantee and, after a Preferred Securities Guarantee Event of
Default, to exercise the same degree of care and skill in the exercise thereof
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Preferred Securities Guarantee Trustee
is under no obligation to exercise any of the powers vested in it by the
Preferred Securities Guarantee at the request of any holder of Preferred
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE: The Preferred
Securities Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price or Liquidation Payment for the Preferred
Securities or upon distribution of the corresponding series of Subordinated Debt
Securities to the holders of the Preferred Securities. The Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the Preferred Securities must restore payment
of any sums paid under the Preferred Securities or the Preferred Securities
Guarantee.
GOVERNING LAW: The Preferred Securities Guarantee will be governed by and construed in accordance
with the laws of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE PREFERRED SECURITIES GUARANTEE
AND THE SUBORDINATED DEBT SECURITIES HELD BY THE TRUST
PaymentsYork, without regard to conflict of Distributions and redemption and liquidation payments due on
the Preferred Securities (to the extent the Trust has funds available for such
payments) will be guaranteed by the Company as and to the extent set forth under
"DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE". No single document
executed by the Company in connection with the issuance of the Preferred
Securities will provide for the Company's full, irrevocable and unconditional
guarantee of the Preferred Securities. It is only the combined operation of the
Company's obligations under the Preferred Securities Guarantee, the Declaration,
the corresponding series of Subordinated Debt Securities and the Indenture that
has the effect of providing a full, irrevocable and unconditional guarantee of
the Trust's obligations under its Preferred Securities.
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A holder of any Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against the
Preferred Securities Guarantee Trustee, the Trust or any other person or entity.
As long as the Company makes payments of interest and other payments when
due on the Subordinated Debt Securities held by the Trust, such payments will be
sufficient to cover the payment of Distributions and redemption and Liquidation
Distributions due on the Preferred Securities, primarily because (i) the
aggregate principal amount of such Subordinated Debt Securities will be equal to
the sum of the aggregate liquidation amount of the Preferred Securities and
Common Securities, (ii) the interest rate and interest and other payment dates
on such Subordinated Debt Securities will match the Distribution rate and
Distribution and other payment dates for the Preferred Securities, (iii) the
Declaration provides that the Company shall pay for all and any costs, expenses
and liabilities of the Trust of such Preferred Securitieslaws
principles, except the Trust's
obligations under the Preferred Securities, and (iv) the Declaration provides
that the Trust will not engage in any activity that is not consistent with the
limited purposes of the Trust. If and to the extent that the Company does not
make payments on such Subordinated Debt Securities, the Trust will not have
funds available to make payments of Distributions or other amounts due on the
Preferred Securities.
A principal difference between the rights of a holder of a Preferred
Security (which represents an undivided beneficial interest in the assets of the
Trust thereof) and a holder of a Subordinated Debt SecurityIndenture Act is that a holder of
a Subordinated Debt Security will accrue, and (subject to the permissible
extension of the interest payment period) is entitled to receive, interest on
the principal amount of Subordinated Debt Securities held, while a holder of
Preferred Securities is entitled to receive Distributions only if and to the
extent the Trust has funds available for the payment of such Distributions.
Upon any voluntary or involuntary dissolution or liquidation of the Trust
not involving a distribution of the Subordinated Debt Securities held by the
Trust, after satisfaction of liabilities to creditors of the Trust, the holders
of the Preferred Securities will be entitled to receive, out of assets held by
the Trust, the Liquidation Distribution in cash. See "DESCRIPTION OF THE
PREFERRED SECURITIES OF THE TRUST -- Liquidation Distribution Upon Dissolution".
Upon any voluntary liquidation or bankruptcy of the Company, the Trust, as
holder of the Subordinated Debt Securities, would be a creditor of the Company,
subordinated in right of payment to all Senior Indebtedness, but entitled to
receive payment in full of principal, premium, if any, and interest, before any
stockholders of the Company receive payments or distributions.
A default or event of default under any Senior Indebtedness would not
constitute an Event of Default under the Subordinated Debt Securities Indenture.
However, in the event of payment defaults under, or acceleration of, Senior
Indebtedness, the subordination provisions of the Subordinated Debt Securities
provide that no payments may be made in respect of the Subordinated Debt
Securities until such Senior Indebtedness has been paid in full or any payment
default thereunder has been cured or waived. Failure to make required payments
on any series of Subordinated Debt Securities would constitute an Event of
Default under the Subordinated Debt Securities.applicable.
VALIDITY OF THE SECURITIES
Except as set forth below, the validity of the Offered Securities of the
Companyour securities will be passed
upon for the Company by LeBoeuf, Lamb, Greene & MacRae, L.L.P., a limited liability partnership
including professional corporations, New York, New York. Certain legal matters
in connection with the Offered Securitiessecurities will be passed upon for the underwriters by
Cahill Gordon & Reindel, a partnership including a professional corporation, New
York, New York. Certain
matters of Delaware law relating to the validity of the Preferred Securities
will be passed upon on behalf of the Trust by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to the Trust. Certain United
States federal income taxation matters will be passed upon for the Company and
the Trust by LeBoeuf, Lamb, Greene & MacRae, L.L.P, special tax counsel to the
Company and the Trust. All legal matters pertaining to title and the respective
liens
-41-
of the 1993 Mortgage and the 1939 Mortgage will be passed upon only by
LeBoeuf, Lamb, Greene & MacRae, L.L.P. Cahill Gordon & Reindel from time to
time renders legal services to the Company. In giving their opinion, Cahill Gordon & Reindel may rely as to
all matters of Colorado law upon the opinion of LeBoeuf, Lamb, Greene & MacRae,
L.L.P.
EXPERTS
The consolidated balance sheets and statements of capitalization of thePublic
Service Company of Colorado and its subsidiaries as of December 31, 19971998 and
1996,1997, and the related consolidated statements of income, shareholders'shareholder's equity
and cash flows for each of the three years in the period ended December 31,
1997,1998, and the related financial statement schedule, included in the Company'sNCE Combined
Annual Report on Form 10-K for the year ended December 31, 1997, included1998 and in the New Century Energies,
Inc. combined AnnualNCE
-13-
Combined Report on Form 10-K for the year ended December 31, 1997,8-K, which statements and schedule are incorporated by
reference in this Registration
Statement,registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as set forth in their reports with respect thereto,reports. The
financial statements and related financial statement schedule are incorporated
by reference herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
With respect to the unaudited consolidated condensed interim financial
information of Public Service Company of Colorado and its subsidiaries for the
quarters ended March 31, 1999 and 1998, included in its Form 10-Q for the
quarter ended March 31, 1999, included in the NCE Combined Quarterly Report on
Form 10-Q for the quarter ended March 31, 1999, which financial information is
incorporated by reference in this registration statement, Arthur Andersen LLP
has applied limited procedures in accordance with professional standards for a
review of that information. However, their separate report thereon states that
they did not audit and they do not express an opinion on that consolidated
condensed interim financial information. Accordingly, the degree of reliance on
their report on that information should be restricted in light of the limited
nature of the review procedures applied. In addition, the accountants are not
subject to the liability provisions of Section 11 of the Securities Act for
their report on the unaudited consolidated condensed interim financial
information because that report is not a "report" or a "part" of the
registration statement prepared or certified by the accountants within the
meaning of Sections 7 and 11 of the Securities Act.
PLAN OF DISTRIBUTION
The Company and/or the TrustWe may sell the Offered Securities: (i) directly
to purchasers, (ii) to orsecurities through underwriters or (iii)directly to other
purchasers or through agents or
dealers.agents.
The Prospectus Supplement with respect to the Offered Securities will
set forth the terms of the offering of the Offered Securities, including the
name or names of any such underwriters, agents or dealers; the purchase price of
the Offered Securities and the net proceeds to the Company and/or the Trust from
such sale; any underwriting discounts and commissions or agency fees and other
items constituting underwriters' or agents' compensation; the initial public
offering price; any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchange on which such Offered Securities may be listed. 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, the Offered Securities will be
acquired by such underwriters for their own account and may be resoldsold from time to time in one or more transactions including negotiated transactions, at
a fixed public offering price or prices, which may be changed, or at varyingmarket prices determinedprevailing at
the time of sale.
The Offered Securitiessale, at prices related to such prevailing market prices or at
negotiated prices.
In connection with the sale of securities, underwriters may receive
compensation from us or from purchasers of the securities for whom they may act
as agents in the form of discounts, concessions or commissions. Underwriters may
sell the securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they act as agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be offereddeemed to be underwriters as defined in the public either throughSecurities Act
of 1933 and any discounts or commissions received by them from us and any profit
on the resale of the securities by them may be treated as underwriting syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters.discounts
and commissions under the Securities Act. The terms of any particular offering
of the securities, including the identity of any such underwriter or underwriters with
respect to a particular underwritten offering of Offered Securitiesagent and
any such compensation received from us, will be nameddescribed in the Prospectus Supplement relating to such offeringapplicable
prospectus supplement.
-14-
We may enter into agreements with underwriters and if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover of such Prospectus Supplement. Unless otherwise set
forthagents who participate
in the Prospectus Supplement relating thereto, the obligationsdistribution of the underwriters to purchase the Offered Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all the
Offered Securities if any are purchased.
If dealers are utilized in a sale of Offered Securities, the Company and/or
the Trust will sell such Offered Securities to the dealers as principal. The
dealers may then resell such Offered Securities to the public at varying prices
to be determined by such dealers at the time of resale. The names of the
dealers and the terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
The Offered Securities may be sold directly by the Company and/or the Trust
or through agents designated by the Company and/or the Trust from time to time.
Any agent involved in the offer or sale of the Offered Securities in respectsecurities pursuant to which this Prospectus is delivered willthey nay be named, and any commissions payable by
the Company and/or the Trust to such agent will be set forth in the Prospectus
Supplement relating thereto. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
-42-
Agents, dealers and underwriters may be entitled under agreements with the
Company and/or the Trust to
indemnification by the Company and/or the Trustus against certain civil liabilities, including liabilities under
the Securities Act, orAct.
The securities are not proposed to contribution with respect to payments which such agents, dealers orbe listed on a securities exchange, and
any underwriters maywill not be requiredobligated to make a market in respect thereof. Agents,the securities. We
cannot predict the activity or liquidity of any trading in the securities.
Underwriters, dealers and underwritersagents may be customers of, engage in transactions with, or
perform services for, the Company and/us or the Trustour subsidiaries in the ordinary course of business.
-43-their
businesses.
-15-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEMItem 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee . . . . . . . . . . $ 132,750
NYSE Listing Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,100.................. $139,000
Blue Sky Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000
* Accountants'Fees......................................................... 15,000*
*Accountants' Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 25,000
* Company Counsel'sExpenses....................................... 30,000*
*Counsel's Fees and Expenses . . . . . . . . . . . . . . . . . . 350,000
* Trustees'Expenses.......................................... 150,000*
*Trustees' Fees and Expenses, including Counsel and
Authentication Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
* PrintingFees................................................ 40,000*
*Printing of Registration Statement, Prospectus, Prospectus
Supplements, Supplemental Indentures, etc. . . . . . . . . . . . . 250,000
* Ratingetc.......................... 40,000*
*Rating Agencies' Fees . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
* Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000
----------Fees................................................ 200,000*
*Miscellaneous........................................................ 100,000*
-------
*Total Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,207,850
----------
----------Expenses....................................................... $714,000*
- ------------------------________________
*Estimated
ITEMItem 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.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, 7-109-109 and 7-109-1097-109-110 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 Registrantregistrant currently has
such insurance in effect.
A resolution adopted at a special meeting of stockholders of the Registrantregistrant
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 to 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
II-1
Act, or in case of 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 VParagraph 7 of the Registrant'sregistrant'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"A director of thisthe Corporation shall not be personally 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
II-1
ofdirector, except for liability (i) for any provisionbreach of the
Articlesdirector's duty of Incorporation inconsistent with this
Article, shall eliminate or reduce the protection afforded by this Articleloyalty to
a director of the Corporation with respector to its shareholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for a breach of Colorado Revised Statutes
Section 7-108-403,or (iv) for any mattertransaction from which occurred,the director directly
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.indirectly derived an improper personal benefit."
To the maximum extent permitted by law, the Companywe shall indemnify any person who
is or was aour director, officer, agent, fiduciary or employee of the
Company against any claim,
liability, loss or expense arising against or incurred by such person as a
result of circumstances, events, actions and omissions occurring in such
capacity. The CompanyWe further shall have the authority to maintain insurance at the Company'sour
expense providing for such indemnification, including insurance with respect to
claims, liabilities, losses and expenses against which the Companywe would not otherwise
have the power to indemnify such persons.
ITEMItem 16. EXHIBITS.Exhibits.
Exhibits are listed in the Exhibit Index on page II-5II-6 hereof.
ITEMItem 17. UNDERTAKINGS.Undertakings.
The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "1933 Act");Act;
(ii) to reflect in the Prospectusprospectus any facts or events arising
after the effective date of the Registration Statementregistration statement (or the most recent post-effectivepost-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the CommissionSEC pursuant to Rule 424(b)424 (b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;registration statement; and
II-2
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statementregistration statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER,registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrantregistrant 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.registration statement.
(2) That, for the purpose of determining any liability under the
1933Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-2
(4) That, for purposes of determining any liability under the 1933Securities
Act, each filing of the Registrant'sregistrant's annual report pursuant to Section 13(a) or
Section 15(d)15 (d) of the Exchange Act that is incorporated by reference in this
Registration Statementregistration 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.
(5) That, for purposes of determining any liability under the Securities
Act, of 1933, the information omitted from the form of prospectus filed as part of this
Registration Statementregistration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrantregistrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statementregistration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act, of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statementregistration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(7) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the 1933Securities Act
may be permitted to directors, officers and controlling persons of the
Registrantregistrant pursuant to the provisions under Item 15 above, or otherwise, the
Registrantregistrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
1933Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrantregistrant of expenses incurred or paid by a director, officer or controlling
person of the Registrantregistrant in the successful defense of any action, suit or
proceeding) is asserted by such
II-3
director, officer, or controlling person in connection with the securities being
registered, the Registrantregistrant 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 1933Securities Act and will be governed by the final
adjudication of such issue.
II-3II-4
POWER OF ATTORNEY
Each director and/or officer of the Registrantregistrant whose signature appears
below hereby appoints Wayne H. Brunetti and R.C.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-effectivepost-
effective amendments, to this Registration Statement.registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Act, of 1933, the Registrantregistrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing Form S-3 and has duly caused this Registration Statementregistration 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 6th28th day of March,
1998.June,
1999.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s//s/ Brian P. Jackson
---------------------------------------------------------------------------
Brian P. Jackson, Senior Vice President,
and Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act, of 1933, this Registration Statementregistration
statement has been signed below by the following persons in the capacities and
on the date indicated:
Signature Title Date
- --------- ----- ----
/s/ Bill D. Helton
- --------------------------------------- Director March 6, 1998-----------------------------------------
Bill D. Helton, Chairman of the Board Director June 28, 1999
/s/ Wayne H. Brunetti
- --------------------------------------- Principal Executive Officer March 6, 1998-----------------------------------------
Wayne H. Brunetti, President and Chief Principal Executive Officer June 28, 1999
Executive Officer and Vice Chairman
of the Board
/s/ Brian P. Jackson
- --------------------------------------- Principal Financial Officer March 6, 1998-----------------------------------------
Brian P. Jackson, Senior Vice President Principal Financial Officer June 28, 1999
and Chief Financial Officer and Treasurer
/s/ Teresa S. Madden
- --------------------------------------- Principal Accounting Officer March 6, 1998-----------------------------------------
Teresa S. Madden, Controller Principal Accounting Officer June 28, 1999
/s/ R.C. Kelly
- --------------------------------------- Director March 6, 1998-----------------------------------------
R.C. Kelly, Executive Vice President Director June 28, 1999
and Director
II-5
/s/ Henry H. Hamilton
- -------------------------------------------
Henry H. Hamilton, Executive Vice President Director June 28, 1999
and Director
/s/ Henry H. Hamilton
- --------------------------------------- Director March 6, 1998
Henry H. Hamilton, Director
/s/ David M. Wilks
- --------------------------------------- Director March 6, 1998 David M. Wilks Director
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, PSCO Capital
Trust I certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3June 28, 1999
- -------------------------------------------
David M. Wilks, Executive Vice President
and that it has duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City and County of Denver and State of
Colorado on the 6th day of March, 1998.
PSCO CAPITAL TRUST I
By: /s/ Nancy Felker
--------------------------------
Nancy Felker, as Trustee
II-5Director
II-6
EXHIBIT INDEX
1(a)1 Form of Bond Purchase Contract (to be filed under subsequent Form 8-K).
1(b) Form2* Agreement and Plan of Agency Agreement with respect to the Medium Term Notes (to
be filed under subsequent Form 8-K).
1(c) FormMerger By and Between Northern States Power
Company and New Century Energies, Inc. dated as of Underwriting Agreement with respect to the Senior Debt
Securities (to be filed under subsequent Form 8-K).
1(d) Form of Underwriting Agreement with respect to the Subordinated Debt
Securities (to be filed under subsequent Form 8-K).
1(e) Form of Underwriting Agreement with respect to the Preferred
Securities (to be filed under subsequent From 8-K)March 24, 1999
(Form Prem14A, April 26, 1999-Appendix A).
3* Amended and Restated Articles of Incorporation of the Registrant dated
September 19, 1997July 10, 1998 (Form 10-K, December 31, 19971998 - Exhibit 3(a)(1)).
4(a)(1)(l)* 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:
Previous Filing: Previous Filing:
Form; Date or Form; Date or Exhibit
Dated as of File No. Exhibit No. Dated as of File No. No.
- ------------- ----------------- --------------------- ------------- ---------------- -------------------- ---------- ---------
Mar. 14, 1941 10, 1946 B-2 Apr. 21, 1970 8-K, Apr. 1970 1
May 14, 1941 10, 1946 B-2 Apr. 21, 1970 8-K, Apr. 1970 1
May 14, 1941 10, 1946 B-3 Sept. 1, 1970 8-K, Sept. 1970 2
Apr. 28, 1942 10, 1946 B-4 Feb. 1, 1971 8-K, Feb. 1971 2
Apr. 14, 1943 10, 1946 B-5 Aug. 1, 1972 8-K, Aug. 1972 2
Apr. 27, 1944 10, 1946 B-6 June 1, 1973 8-K, June 1973 1
Apr. 18, 1945 10, 1946 B-7 Mar. 1, 1974 8-K, Apr. 1974 2
Apr. 23, 1946 10-K, 1946 B-8 Dec. 1, 1974 8-K, Apr. 1974 2
Apr. 23, 1946 10-K, 1946 B-8 Dec. 1, 1974 8-K, Dec. 1974 1
Apr. 9, 1947 10-K, 1946 B-9 Oct. 1, 1975 S-7, (2-60082) 2(b)(3)
June 1, 1947 S-1, (2-7075) 7(b) Apr. 28, 1976 S-7, (2-60082) 2(b)(4)
Apr. 1, 1948 S-1, (2-7671) 7(b)(1) Apr. 28, 1977 S-7, (2-60082) 2(b)(5)
May 20, 1948 S-1, (2-7671) 7(b)(1) Apr. 28, 1977 S-7, (2-60082) 2(b)(5)
May 20, 1948 S-1, (2-7671) 7(b)(2) Nov. 1, 1977 S-7, (2-62415) 2(b)(3)
Oct. 1, 1948 10-K, 1948 4 Apr. 28, 1978 S-7, (2-62415) 2(b)(4)
Apr. 20, 1949 10-K, 1949 1 Oct. 1, 1978 10-K, 1978 D(1)
Apr. 24, 1950 8-K, Apr. 1950 1 Oct. 1, 1978 10-K, 1978 D(1)
Apr. 24, 1950 8-K, Apr. 1950 1 Oct. 1, 1979 S-7, (2-66484) 2(b)(3)
Apr. 18, 1951 8-K, Apr. 1951 1 Mar. 1, 1980 10-K, 1980 4(c)
Oct. 1, 1951 8-K, Nov. 1951 1 Apr. 28, 1981 S-16, (2-74923) 4(c)
Apr. 21, 1952 8-K, Apr. 1952 1 Nov. 1, 1981 S-16, (2-74923) 4(d)
Dec. 1, 1952 S-9, (2-11120) 2(b)(9) Dec. 1, 1981 10-K, 1981 4(c)
Apr. 15, 1953 8-K, Apr. 1953 2 Apr. 29, 1982 10-K, 1982 4(c)
April 19, 1954 8-K, Apr. 1954 1 May 1, 1983 10-K, 1983 4(c)
Oct. 1, 1954 8-K, Oct. 1954 1 Apr. 30, 1984 S-3, (2-95814) 4(c)
Apr. 18, 1955 8-K, Apr. 1955 1 Mar. 1, 19801985 10-K, 1980 4(c)
Oct. 1, 1951 8-K, Nov. 1951 1 Apr. 28, 1981 S-16, (2-74923)1985 4(c)
Apr. 21, 1952 8-K, Apr. 195224, 1956 10-K, 1956 1 Nov. 1, 1981 S-16, (2-74923) 4(d)1986 10-K, 1986 4(c)
May 1, 1957 S-9, (2-13260) 2(b)(15) May 1, 1987 10-K, 1987 4(c)
April 10, 1958 8-K, Apr. 1958 1 July 1, 1990 S-3, (33-37431) 4(c)
May 1, 1959 8-K, May 1959 2 Dec. 1, 1952 S-9, (2-11120) 2(b)(9) Dec. 1, 19811990 10-K, 1981 4(c)
Apr. 15, 1953 8-K, Apr. 1953 2 Apr. 29, 1982 10-K, 1982 4(c)
April 19, 1954 8-K, Apr. 1954 1 May 1, 1983 10-K, 1983 4(c)
Oct. 1, 1954 8-K, Oct. 1954 1 Apr. 30, 1984 S-3, (2-95814)1990 4(c)
Apr. 18, 19551960 8-K, Apr. 19551960 1 Mar. 1, 19851992 10-K, 1985 4(c)1992 4(d)
II-6II-7
Previous Filing: Previous Filing:
Form; Date or Form; Date or Exhibit
Dated as of File No. Exhibit No. Dated as of File No. No.
- ------------- ----------------- --------------------- ------------- ---------------- -------------------- ---------- ----
Apr. 24, 1956 10-K, 1956 1 Nov. 1, 1986 10-K, 1986 4(c)
May 1, 1957 S-9, (2-13260) 2(b)(15) May 1, 1987 10-K, 1987 4(c)
April 10, 1958 8-K, Apr. 1958 1 July 1, 1990 S-3, (33-37431) 4(c)
May 1, 1959 8-K, May 1959 2 Dec. 1, 1990 10-K, 1990 4(c)
Apr. 18, 1960 8-K, Apr. 1960 1 Mar. 1, 1992 10-K, 1992 4(d)
Apr. 19, 1961 8-K, Apr. 1961 1 Apr. 1, 1993 10-Q, June 30, 1993 4(a)
Oct. 1, 1961 8-K, Oct. 1961 2 June 1, 1993 10-Q, June 30, 1993 4(a)
Oct.4(b)
Mar. 1, 19611962 8-K, Oct. 1961 2Mar. 1962 3(a) Nov. 1, 1993 S-3, (33-51167) 4(a)(3)
June 1, 1964 8-K, June 1964 1 Jan. 1, 1994 10-K, 1993 4(a)(3)
May 1, 1966 8-K, May 1966 2 Sept. 2, 1994 8-K, Sept. 1994 4(a)
July 1, 1967 8-K, July 1967 2 May 1, 1996 10-Q, June 30, 1993 4(b)
Mar. 1, 1962 8-K, Mar. 1962 3(a) Nov. 1, 1993 S-3, (33-51167) 4(a)(3)
June 1, 1964 8-K, June 1964 1 Jan. 1, 1994 10-K, 1993 4(a)(3)
May 1, 1966 8-K, May 1966 2 Sept. 2, 1994 8-K, Sept. 19941996 4(a)
July 1, 1967 8-K, July 1967 2 May 1, 1996 10-Q, June 30, 1996 4(a)
July 1, 1968 8-K, July 1968 2 Nov. 1, 1996 10-K, 1996 4(a)(3)
Apr. 25, 1969 8-K, Apr. 1969 1 Feb. 1, 1997 10-Q, March 31, 1997 4(a)
Apr. 1, 1998 10-Q, March 31, 19971998 4(a)
4(a)(3) Form of Supplemental Indenture establishing series of First Mortgage
Bonds under the Indenture, dated as of December 1, 1939.
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:
Previous Filing:
Form; Date or
Dated as of File No. Exhibit No.
- ----------------- ------------------------------- -------- -----------
November 1, 1993 S-3, (33-51167) 4(b)(2)
January 1, 1994 10-K, 1993 4(b)(3)
September 2, 1994 8-K, Sept. 1994 4(b)
May 1, 1996 10-Q, June 30, 1996 4(b)
November 1, 1996 10-K, 1996 4(b)(3)
February 1, 1997 10-Q, March 31, 1997 4(b)
April 1, 1998 10-Q, March 31, 19971998 4(b)
4(b)(3)II-8
4(c)(1)* Form of Supplemental Indenture establishing series of First Collateral
Trust Bonds or Medium Term Notes under the Indenture, dated as of
October 1, 1993.
4(c) Form of Senior Debt Securities Indenture, providing for the issuance of Senior Debt
Securities.
4(d)Securities (Form S-3A, March 31, 1998-Exhibit 4(c)).
4(c)(2) Form of SubordinatedSupplemental Indenture, providing for the issuance of Senior
Debt Securities under the Indenture.
4(c)(3) Form of Senior Debt Securities (included in Exhibit 4(c)(2)).
4(d) (1)* Indenture, dated as of May 1, 1998, providing for the issuance of
Subordinated Debt Securities.
4(e) Form ofSecurities (Form 8-K, May 6, 1998-Exhibit 4.2).
4(d)(2)* Supplemental Indenture, to Formdated as of May 11, 1998, providing for the
issuance of Subordinated Debt Securities Indenture establishing a series of Deferrable Interest Subordinated
Debentures.
4(f) Form of Junior Subordinated Debentures (included in(Form 8-K, May 6, 1998-
Exhibit 4(e)).
II-7
4(g) Form of Guarantee Agreement with respect to the Preferred Securities
of PSCO Capital Trust I.
4(h) Certificate of Trust of PSCO Capital Trust I.
4(i) Declaration of Trust of PSCO Capital Trust I.
4(j) Form of Amended and Restated Declaration of Trust of PSCO Capital
Trust I.
4(k) Form of Preferred Security (included in Exhibit 4(j)4.3).
5(a) Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding the
validity of certain Offered Securities.
5(b) Opinion of Richards, Layton & Finger, P.A. regarding the validity of
the Preferred Securities under Delaware Law.
8(a) Tax opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (to be filed
under subsequent Form 8-K).
12 Computation of Ratio of Consolidated Earnings to Consolidated Fixed
Charges.
15 Letter regarding Unaudited Interim Financial Information of Arthur
Andersen LLP.
23(a) Consent of Arthur Andersen LLP.
23(b) ConsentsConsent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. and Richards,
Layton & Finger, P.A. are, is included in their opinionsits
opinion filed as ExhibitsExhibit 5(a) and 5(b), respectively..
24 The Power of Attorney is included on page II-4II-5 hereof.
25(a) Statement of Eligibility of First Trust of New York, National
Association, as successor Trustee under the Indenture, dated as of
October 1, 1993.
25(b)25 Statement of Eligibility of The Bank of New York, as Trustee under the
Senior Debt Securities Indenture.
25(c) Statement of Eligibility of The Bank of New York, as Trustee under the
Subordinated Debt Securities Indenture.
25(d) Statement of Eligibility of The Bank of New York, as Trustee of the
Preferred Securities Guarantee of the Company for the benefit of the
holders of the Preferred Securities of PSCO Capital Trust I.
25(e) Statement of Eligibility of The Bank of New York, as Trustee under the
Amended and Restated Declaration of Trust of PSCO Capital Trust I.
- --------------______________
* Previously filed as indicated and incorporated herein by reference.
II-8II-9