EXHIBIT 4.01
PUBLIC SERVICE COMPANY
OF COLORADO
TO
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
---------------------
SUPPLEMENTAL INDENTURE NO. 9
Dated as of September 1, 2002
Supplemental to the Indenture
dated as of October 1, 1993
---------------------
Establishing the Securities of Series No. 8,
designated First Collateral Trust Bonds, Series No. 8
SUPPLEMENTAL INDENTURE NO. 9, dated as of September 1, 2002, between
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and existing
under the laws of the State of Colorado (hereinafter sometimes called the
"Company"), and U.S. BANK TRUST NATIONAL ASSOCIATION (FORMERLY FIRST TRUST OF
NEW YORK, NATIONAL Association), a national banking association, as successor
trustee (hereinafter sometimes called the "Trustee") to Morgan Guaranty Trust
Company of New York under the Indenture, dated as of October 1, 1993
(hereinafter called the "Original Indenture"), as previously supplemented and as
further supplemented by this Supplemental Indenture No. 9. The Original
Indenture and any and all indentures and all other instruments supplemental
thereto are hereinafter sometimes collectively called the "Indenture".
RECITALS OF THE COMPANY
The Original Indenture was authorized, executed and delivered by the
Company to provide for the issuance from time to time of its Securities (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as contemplated therein, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Securities.
The Company has heretofore executed and delivered to the Trustee the
Supplemental Indentures referred to in Schedule A hereto for the purpose of
establishing a series of bonds and appointing the successor Trustee.
The Company desires to establish a series of Securities to be
designated "First Collateral Trust Bonds, Series No. 8", such series of
Securities to be hereinafter sometimes called "Series No. 8".
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. 9 to establish the Securities of Series No. 8 and has
duly authorized the issuance of such Securities; and all acts necessary to make
this Supplemental Indenture No. 9 a valid agreement of the Company, and to make
the Securities of Series No. 8 valid obligations of the Company, have been
performed.
GRANTING CLAUSES
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 9 WITNESSETH, that, in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, and in order to secure the payment of the principal of and
premium, if any, and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants contained therein and in the
Indenture and to declare the terms and conditions on which such Securities are
secured, the Company hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms to the Trustee, and grants
to the Trustee a security interest in, the following:
GRANTING CLAUSE FIRST
All right, title and interest of the Company, as of the date
of the execution and delivery of this Supplemental Indenture No. 9, in
and to property (other than Excepted Property), real, personal and
mixed and wherever situated, in any case used or to be used in or in
connection with the Electric Utility Business (whether or not such use
is the sole use of such property), including without limitation (a) all
lands, easements, servitudes, licenses, permits, rights of way and
other rights and interests in or relating to real property used or to
be used in or in connection with the Electric Utility Business or
relating to the occupancy or use of such real property, subject
however, to the exceptions and exclusions set forth in clause (a) of
Granting Clause First of the Original Indenture; (b) all plants,
generators, turbines, engines, boilers, fuel handling and
transportation
facilities, air and water pollution control and sewage and solid waste
disposal facilities and other machinery and facilities for the
generation of electric energy; (c) all switchyards, lines, towers,
substations, transformers and other machinery and facilities for the
transmission of electric energy; (d) all lines, poles, conduits,
conductors, meters, regulators and other machinery and facilities for
the distribution of electric energy; (e) all buildings, offices,
warehouses and other structures used or to be used in or in connection
with the Electric Utility Business; (f) all pipes, cables, insulators,
ducts, tools, computers and other data processing and/or storage
equipment and other equipment, apparatus and facilities used or to be
used in or in connection with the Electric Utility Business; (g) any or
all of the foregoing properties in the process of construction; and (h)
all other property, of whatever kind and nature, ancillary to or
otherwise used or to be used in conjunction with any or all of the
foregoing or otherwise, directly or indirectly, in furtherance of the
Electric Utility Business;
GRANTING CLAUSE SECOND
Subject to the applicable exceptions permitted by Section
810(c), Section 1303 and Section 1305 of the Original Indenture, all
property (other than Excepted Property) of the kind and nature
described in Granting Clause First which may be hereafter acquired by
the Company, it being the intention of the Company that all such
property acquired by the Company after the date of the execution and
delivery of this Supplemental Indenture No. 9 shall be as fully
embraced within and subjected to the Lien hereof as if such property
were owned by the Company as of the date of the execution and delivery
of this Supplemental Indenture No. 9;
GRANTING CLAUSE FOURTH
All other property of whatever kind and nature subjected or
required to be subjected to the Lien of the Indenture by any of the
provisions thereof;
EXCEPTED PROPERTY
Expressly excepting and excluding, however, from the Lien and
operation of the Indenture all Excepted Property of the Company,
whether now owned or hereafter acquired;
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto
the Trustee, its successors in trust and their assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the execution
and delivery of the Original Indenture (including, but not limited to, the Lien
of the PSCO 1939 Mortgage), (b) as to property acquired by the Company after the
date of the execution and delivery of the Original Indenture, Liens existing or
placed thereon at the time of the acquisition thereof (including, but not
limited to, the Lien of any Class A Mortgage and purchase money Liens), (c)
Retained Interests and (d) any other Permitted Liens, it being understood that,
with respect to any property which was at the date of execution and delivery of
the Original Indenture or thereafter became or hereafter becomes subject to the
Lien of any Class A Mortgage, the Lien of the Indenture shall at all times be
junior, subject and subordinate to the Lien of such Class A Mortgage;
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IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Securities without
any priority of any such Security over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest of the Trustee in
and to the Mortgaged Property shall cease, terminate and become void in
accordance with, and subject to the conditions set forth in, Article Nine of the
Original Indenture, and if, thereafter, the principal of and premium, if any,
and interest, if any, on the Securities shall have been paid to the Holders
thereof, or shall have been paid to the Company pursuant to Section 603 of the
Original Indenture, then and in that case the Indenture shall terminate, and the
Trustee shall execute and deliver to the Company such instruments as the Company
shall require to evidence such termination; otherwise the Indenture, and the
estate and rights thereby granted shall be and remain in full force and effect;
and
THE PARTIES HEREBY FURTHER COVENANT AND AGREE as follows:
ARTICLE ONE
SECURITIES OF SERIES NO. 8
There are hereby established the Securities of Series No. 8, which
shall have the terms and characteristics set forth below (the lettered
subdivisions set forth below corresponding to the lettered subdivisions of
Section 301 of the Original Indenture):
(a) the title of the Securities of such series shall be "First
Collateral Trust Bonds, Series No. 8"; provided, however, that, at any
time after the PSCO 1939 Mortgage shall have been satisfied and
discharged, the Company shall have the right, without any consent or
other action by the Holders of such Securities, to change such title in
such manner as shall be deemed by the Company to be appropriate to
reflect such satisfaction and discharge, such change to be evidenced in
an Officer's Certificate;
(b) the Securities of Series No. 8 shall be initially authenticated and
delivered in the aggregate principal amount of $600,000,000;
(c) interest on the Securities of Series No. 8 shall be payable to the
Persons in whose names such Securities are registered at the close of
business on the Regular Record Date for such interest, except as
otherwise expressly provided in the form of such Securities attached as
Exhibit A hereto;
(d) the principal of the Securities of Series No. 8 shall be payable on
October 1, 2012, the Stated Maturity.
(e) the Securities of Series No. 8 shall bear interest at a rate of
7.875% per annum; interest shall accrue on the Securities of Series No.
8 from September 26, 2002, or the most recent date to which interest
has been paid or duly provided for; the Interest Payment Dates for such
Securities shall be April 1 and October 1 in each year, commencing
April 1, 2003, and the Regular Record Dates with respect to the
Interest Payment Dates for such Securities shall be March 15 and
September 15 in each year, respectively (whether or not a Business
Day);
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(f) the Corporate Trust Office of U.S. Bank Trust National Association
in New York, New York shall be the place at which (i) the principal of,
premium, if any, and interest, if any, on the Securities of Series No.
8 shall be payable, (ii) registration of transfer of such Securities
may be effected, (iii) exchanges of such Securities may be effected and
(iv) notices and demands to or upon the Company in respect of such
Securities and the Indenture may be served; and U.S. Bank Trust
National Association shall be the Security Registrar for such
Securities; provided, however, that the Company reserves the right to
change, by one or more Officer's Certificates, any such place or the
Security Registrar; and provided, further, that the Company reserves
the right to designate, by one or more Officer's Certificates, its
principal office in Denver, Colorado as any such place or itself as the
Security Registrar;
(g) the Securities of Series No. 8 shall be redeemable at the option of
the Company at any time prior to maturity, in whole or in part, at a
redemption price equal to the greater of (i) 100% of the principal
amount thereof to be redeemed, or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest on such
Securities to be redeemed, discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 50 basis points, plus in each case,
accrued and unpaid interest to the Redemption Date. For purposes
hereof, the following defined terms shall have the meaning ascribed to
them:
"Treasury Yield" means, for any Redemption Date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities of Series
No. 8 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of the Securities of Series No. 8.
"Comparable Treasury Price" means, for any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding the Redemption Date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if that release
(or any successor release) is not published or does not contain those
prices on that Business Day, (A) the average of the Reference Treasury
Dealer Quotations for the Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations for the Redemption
Date, or (B) if the Trustee obtains fewer than four Reference Treasury
Dealer Quotations, the average of all of the Quotations.
"Independent Investment Banker" means Banc of America
Securities LLC or its successor or, if such firm or its successor is
unwilling or unable to select the Comparable Treasury Issue, one of the
remaining Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc of America
Securities LLC and Salomon Smith Barney Inc. and any other Primary
Treasury Dealer designated by, and not
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affiliated with, Banc of America Securities LLC, Salomon Smith Barney
Inc. and their respective successors, provided, however, that if either
of the foregoing or any of its designees ceases to be a Primary
Treasury Dealer, the Company will appoint another Primary Treasury
Dealer as a substitute and (ii) any other Primary Treasury Dealer
selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government
securities dealer in New York City.
"Reference Treasury Dealer Quotations" means, for each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker by the Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding the Redemption Date.
(h) not applicable;
(i) not applicable;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) not applicable;
(o) any Securities of Series No. 8 which are presented to the Company
and/or the Trustee for exchange pursuant to a Registered Exchange Offer
in accordance with the terms thereof shall be exchanged for New
Securities of equal principal amount upon surrender to the Company
and/or the Trustee of the Securities of Series No. 8 to be exchanged;
provided, however, that the Securities of Series No. 8 so surrendered
for exchange shall be duly endorsed and accompanied by a letter of
transmittal or written instrument of transfer in form satisfactory to
the Company, duly executed by the registered holder thereof or its
attorney who shall be duly authorized in writing to execute such
document. Whenever any Securities of Series No. 8 are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver to and in the name of each registered holder
that has properly tendered its Securities of Series No. 8 for exchange,
the same aggregate principal amount of New Securities as the Securities
of Series No. 8 that have been so surrendered. For purposes hereof, the
following defined terms shall have the meaning ascribed to them:
"Registered Exchange Offer" means the proposed offer of the
Company to issue and deliver to the Holders of the Securities of Series
No. 8 that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities of
Series No. 8, a like aggregate principal amount of the New Securities.
"New Securities" means debt securities of the Company
identical in all material respects to the Securities of Series No. 8
presented for exchange pursuant to the Registered Exchange Offer
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(except that the transfer restrictions shall be modified or eliminated,
as appropriate) and to be issued under the Indenture.
(p) not applicable;
(q) (i) (A) the Securities of Series No. 8, if issued to persons
that are institutional "accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) (each, an
"Institutional Accredited Investor") under the Securities Act
of 1933, as amended (the "Securities Act") that are not QIBs
(as defined below), shall be issued in definitive form,
registered in the name of the Holder thereof and (B) the
Securities of Series No. 8 (1) if issued to "qualified
institutional buyers," as defined in Rule 144A of the
Securities Act (each, a "QIB") in reliance on Rule 144A under
the Securities Act shall be issued in the form of one or more
global bonds that are not Regulation S global bonds, or (2) if
issued in offshore transactions to non-U.S. persons in
reliance on Regulation S shall be issued in the form of one or
more Regulation S global bonds, and, in the case of either (1)
or (2) above, shall be deposited on behalf of the Holders of
the Securities of Series No. 8 represented thereby with the
Trustee, as custodian for the securities depositary, shall be
registered in the name of the securities depositary or its
nominee and the aggregate principal amount of Securities of
Series No. 8 so issued may from time to time be increased or
decreased by adjustments made on the records of the Trustee
and the securities depositary or its nominee. For purposes
hereof, "Regulation S global bonds" means one or more global
bonds deposited with a custodian for, and registered in the
name of a nominee of, a securities depositary, interest in
which will be held for the benefit of purchasers of the bonds
in offshore transactions under Regulation S;
(ii) except as provided in subparagraphs (q)(i) and (v)
hereof, the Securities of Series No. 8 are to be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Depositary"). Subject to
subparagraphs (o) and (q)(iii), (iv) and (v) hereof, such
Securities shall not be transferable or exchangeable, nor
shall any purported transfer be registered, except as follows:
(A) such Securities may be transferred in whole, and
appropriate registration of transfer effected, if
such transfer is by such nominee to the Depositary,
or by the Depositary to another nominee thereof, or
by any nominee of the Depositary to any other nominee
thereof, or by the Depositary or any nominee thereof
to any successor securities depositary or any nominee
thereof; and
(B) such Securities may be exchanged for definitive
Securities registered in the respective names of the
beneficial holders thereof, and, subject to
subparagraph (iii), (iv) and (v) below, thereafter
shall be transferable without restriction, if:
(1) the Depositary, or any successor
securities depositary, shall have notified
the Company and the Trustee that it is
unwilling or unable to continue to act as
securities depositary with respect to such
Securities or the Depositary has ceased to
be a clearing agency registered under the
Securities Exchange Act of 1934, as amended,
and the Trustee shall not
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have been notified by the Company within
ninety (90) days of the identity of a
successor securities depositary with respect
to such Securities;
(2) the Company shall have delivered to the
Trustee a Company Order to the effect that
such Securities shall be so exchangeable on
and after a date specified therein;
(3) (a) an Event of Default shall have
occurred and be continuing, (b) the Trustee
shall have given notice of such Event of
Default pursuant to Section 1102 of the
Original Indenture and (c) there shall have
been delivered to the Company and the
Trustee an Opinion of Counsel to the effect
that the interests of the beneficial owners
of such Securities in respect thereof will
be materially impaired unless such owners
become Holders of definitive Securities; or
(4) the Securities or a portion thereof
shall have been transferred to one or more
Institutional Accredited Investors, as
contemplated below.
(iii) all Securities of Series No. 8, whether definitive
Securities or global bonds, and all beneficial interest in one
or more Securities of Series No. 8, and all Securities issued
upon registration of, transfer of, or in exchange for, any
such Securities (other than New Securities or Securities sold
pursuant to an effective registration statement under the
Securities Act or Securities issued, directly or indirectly,
upon registration of transfer of, or in exchange for, any such
Securities), shall be restricted securities within the meaning
of Rule 144 under the Securities Act (collectively,
"Restricted Securities") and shall be subject to the
restrictions on transfer provided in the legends set forth on
the Restricted Securities. The registered Holder of each
Restricted Security, by such registered Holder's acceptance
thereof, agrees to be bound by such restrictions on transfer.
All Restricted Securities shall bear on their faces the
applicable legends limiting transferability set forth on the
form of the Securities of Series No.8.
Institutional Accredited Investors that are not QIBs
may hold interests in the Securities of Series No. 8 only in
definitive form. Any beneficial interest in a global bond that
is a Restricted Security and is transferred to an
Institutional Accredited Investor which is not a QIB will be
delivered in the form of a definitive Security and will cease
to be an interest in such global bond.
Each registered Holder of a definitive Security or a
beneficial interest in a global bond that is a Restricted
Security will be deemed to have represented and agreed to
offer, sell, pledge or otherwise transfer such Securities of
Series No. 8 or beneficial interest only in accordance with
the legend set forth on the face of the Restricted Securities.
Upon the transfer, exchange or replacement of
definitive Securities bearing the legend, or upon request for
removal of the legend on a definitive Security, the Trustee
will deliver Securities that do not bear such legend if the
Trustee has been provided evidence satisfactory to the Company
and to the Trustee (which may include an opinion of counsel)
that neither the legend nor the restrictions on transfer set
forth therein are required to ensure compliance with the
Securities Act.
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Subject to the restrictions on transfer and exchange
set forth herein and in the Indenture, the holder of any
Securities issued hereunder may transfer or exchange such
Securities in whole or in part by surrendering them at the
Corporate Trust Office of the Trustee or its agent, together
with (A), an executed instrument of assignment and transfer
(in the case of a transfer) or a written request for exchange
(in the case of exchange), and, in the case of Securities of
Series No. 8 that are Restricted Securities, a certificate
substantially in the form of Exhibit B hereto, and (B)
additional certifications and evidence that such transfer or
exchange is in compliance with the Securities Act and the
restrictions on transfer set forth in such bonds as may be
required pursuant to the terms of this Supplemental Indenture
No. 9.
(iv) the following provisions shall apply with respect to any
proposed transfer of a Rule 144A global bond or a beneficial
interest therein or of a definitive Security held of record by
an Institutional Accredited Investor prior to (x) the date
which is two years (or such shorter period of time as
permitted by Rule 144(k) of the Securities Act) after the
later of the original issue date of the Securities and the
last date on which the Company or any "affiliate" (as defined
in Rule 144 under the Securities Act) of the Company was the
owner of the Security (or any predecessor of the Security) or
(y) such later date, if any, as may be required by applicable
law:
(A) a transfer of a Rule 144A global bond or a
beneficial interest therein or a definitive Security
held of record by an Institutional Accredited
Investor to a QIB shall be made upon the
representation of the transferee that it is
purchasing the Security for its own account or an
account with respect to which it exercises sole
investment discretion and that it and any such
account is a QIB and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or
has determined not to request such information and
that it is aware that the Ftransferor is relying upon
its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(B) a transfer of a Rule 144A global bond or a
beneficial interest therein or a definitive Security
held of record by an Institutional Accredited
Investor to an Institutional Accredited Investor
shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set
forth in Exhibit C annexed hereto from the proposed
transferee and, if requested by the Company or the
Trustee, the delivery of an opinion of counsel,
certifications and/or other information satisfactory
to each of them; and
(C) a transfer of a Rule 144A global bond or a
beneficial interest therein or a definitive Security
held of record by an Institutional Accredited
Investor to a non-U.S. person shall be made upon
receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Exhibit D
annexed hereto from the proposed transferor and, if
requested by the Company or the Trustee, the delivery
of an opinion of counsel, certifications and/or other
information satisfactory to each of them.
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(v) the following provisions shall apply with respect to any
proposed transfer of a Regulation S global bond or a
beneficial interest therein prior to (x) the date which is two
years (or such shorter period of time as permitted by Rule
144(k) of the Securities Act) after the later of the original
issue date of the Securities and the last date on which the
Company or any "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company was the owner of the Security
(or any predecessor of the Security) or (y) such later date,
if any, as may be required by applicable law:
(A) a transfer of a Regulation S global bond or a
beneficial interest therein to a QIB shall be made
upon the representation of the transferee that it is
purchasing the bond for its own account or an account
with respect to which it exercises sole investment
discretion and that it and any such account is a QIB
and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it
has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware
that the transferor is relying upon its foregoing
representations in order to claim the exemption from
registration provided by Rule 144A;
(B) a transfer of a Regulation S global bond or a
beneficial interest therein to an Institutional
Accredited Investor shall be made upon receipt by the
Trustee or its agent of a certificate substantially
in the form set forth in Exhibit C annexed hereto
from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of
counsel, certifications and/or other information
satisfactory to each of them; and
(C) a transfer of a Regulation S global bond or a
beneficial interest therein to a non-U.S. person
prior to the expiration of the 40-day "distribution
compliance period" within the meaning of Rule 903 of
Regulation S under the Securities Act (the
"Distribution Compliance Period") shall be made upon
receipt by the Trustee or its agent of a certificate
substantially in the form set forth in Exhibit D
annexed hereto from the proposed transferor and, if
requested by the Company or the Trustee, the delivery
of an opinion of counsel, certifications and/or other
information satisfactory to each of them.
Prior to or on the expiration of the
Distribution Compliance Period, beneficial interests
in a Regulation S global bond may only be held
through the operator of the Euroclear System
("Euroclear") or Clearstream Banking, a societe
anonyme ("Clearstream") (as indirect participants in
the Depositary) or another agent member of Euroclear
or Clearstream acting for and on behalf of them,
unless exchanged for interests in the Rule 144A
global bond in accordance with the certification
requirements hereof. During the Distribution
Compliance Period, interests in the Regulation S
global bond, if any, may be exchanged for interests
in the Rule 144A global bond or for definitive
Securities only in accordance with the certification
requirements described in this subparagraph (q)(v).
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After expiration of the Distribution
Compliance Period, interests in the Regulation S
global bond may be transferred to a non-U.S. person
without requiring the certification set forth in
Exhibit D annexed hereto or any additional
certification.
(r) not applicable;
(s) no service charge shall be made for the registration of transfer or
exchange of the Securities of Series No. 8; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the exchange or
transfer;
(t) not applicable;
(u) (i) If the Company shall have caused the Company's
indebtedness in respect of any Securities of Series No. 8 to
have been satisfied and discharged prior to the Maturity of
such Securities, as provided in Section 901 of the Original
Indenture, the Company shall, promptly after the date of such
satisfaction and discharge, give a notice to each Person who
was a Holder of any of such Securities on such date stating
(A)(1) the aggregate principal amount of such Securities and
(2) the aggregate amount of any money (other than amounts, if
any, deposited in respect of accrued interest on such
Securities) and the aggregate principal amount of, the rate or
rates of interest on, and the aggregate fair market value of,
any Eligible Obligations deposited pursuant to Section 901 of
the Original Indenture with respect to such Securities and (B)
that the Company will provide (and the Company shall promptly
so provide) to such Person, or any beneficial owner of such
Securities holding through such Person (upon written request
to the Company sent to an address specified in such notice),
such other information as such Person or beneficial owner, as
the case may be, reasonably may request in order to enable it
to determine the federal income tax consequences to it
resulting from the satisfaction and discharge of the Company's
indebtedness in respect of such Securities. Thereafter, the
Company shall, within forty-five (45) days after the end of
each calendar year, give to each Person who at any time during
such calendar year was a Holder of such Securities a notice
containing (X) such information as may be necessary to enable
such Person to report its income, gain or loss for federal
income tax purposes with respect to such Securities or the
assets held on deposit in respect thereof during such calendar
year or the portion thereof during which such Person was a
Holder of such Securities, as the case may be (such
information to be set forth for such calendar year as a whole
and for each month during such year) and (Y) a statement to
the effect that the Company will provide (and the Company
shall promptly so provide) to such Person, or any beneficial
owner of such Securities holding through such Person (upon
written request to the Company sent to an address specified in
such notice), such other information as such Person or
beneficial owner, as the case may be, reasonably may request
in order to enable it to determine its income, gain or loss
for federal income tax purposes with respect to such
Securities or such assets for such year or portion thereof, as
the case may be. The obligation of the Company to provide or
cause to be provided information for purposes of income tax
reporting by any Person as described in the first two
sentences of this paragraph shall be deemed to have been
satisfied to the extent that the Company has provided or
caused to be
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provided substantially comparable information pursuant to any
requirements of the Internal Revenue Code of 1986, as amended
from time to time (the "Code") and United States Treasury
regulations thereunder.
(ii) Notwithstanding the provisions of subparagraph (i) above,
the Company shall not be required to give any notice specified
in such subparagraph or to otherwise furnish any of the
information contemplated therein if the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize income,
gain or loss for federal income tax purposes as a result of
the satisfaction and discharge of the Company's indebtedness
in respect of such Securities and such Holders will be subject
to federal income taxation on the same amounts and in the same
manner and at the same times as if such satisfaction and
discharge had not occurred.
(iii) Anything in this clause (u) to the contrary
notwithstanding, the Company shall not be required to give any
notice specified in subparagraph (i) or to otherwise furnish
the information contemplated therein or to deliver any Opinion
of Counsel contemplated by subparagraph (ii) if the Company
shall have caused Securities of Series No. 8 to be deemed to
have been paid for purposes of the Indenture, as provided in
Section 901 of the Original Indenture, but shall not have
effected the satisfaction and discharge of its indebtedness in
respect of such Securities pursuant to such Section.
(v) The Securities of Series No. 8 shall be substantially in the form
attached hereto as Exhibit A and shall have such further terms as are
set forth in such form.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. 9 is a supplement to the Original
Indenture. As previously supplemented and further supplemented by this
Supplemental Indenture No. 9, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture, all previous
supplements thereto and this Supplemental Indenture No. 9 shall together
constitute one and the same instrument.
11
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 9 to be duly executed as of the day and year first
above written.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Paul E. Pender
-------------------------------------
Name: Paul E. Pender
Title: Vice President and Treasurer
STATE OF MINNESOTA )
) ss.:
CITY OF MINNEAPOLIS )
On the 17th day of September, 2002, before me personally came Paul E.
Pender to me known, who, being by me duly sworn, did depose and say that he is a
Vice President and Treasurer of Public Service Company of Colorado, one of the
corporations described in and which executed the foregoing instrument; and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Sharon M. Quellhorst
----------------------------------------
Name: Sharon M. Quellhorst
Notary Public, State of Minnesota
Commission Expires: January 31, 2005
12
U.S. BANK TRUST NATIONAL ASSOCIATION,
Trustee
By: /s/ Ignazio Tamburello
-------------------------------------
Name: Ignazio Tamburello
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
CITY AND COUNTY OF NEW YORK )
On the 17th day of September, 2002, before me personally came Ignazio
Tamburello, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of U.S. Bank Trust National Association, the
banking association described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said banking association.
/s/ Rouba Fakih
----------------------------------------
Name: Rouba Fakih
Notary Public, State of New York
Commission Expires: February 20, 2003
13
EXHIBIT A
FORM OF SECURITY
(See legend at the end of this Security for
restrictions on transfer and change of form)
PUBLIC SERVICE COMPANY OF COLORADO
First Collateral Trust Bond, Series No. 8
Original Interest Accrual Date September 26, 2002
Interest Rate: 7.875%
Stated Maturity: October 1, 2012
Interest Payment Dates: April 1 and October 1
Regular Record Dates: March 15 and September 15
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture
-----------------------------------------
Principal Amount Registered No.
$ CUSIP
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on the Stated Maturity specified above, and to pay interest thereon from
the Original Interest Accrual Date specified above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on the Interest Payment Dates specified above in each
year, commencing with the Interest Payment Date next succeeding the Original
Interest Accrual Date specified above, and at Maturity, at the Interest Rate per
annum specified above, until the principal hereof is paid or duly provided for.
The interest so payable, and paid or duly provided for, on any Interest Payment
Date shall, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date specified above (whether or not a
Business Day) next preceding such Interest Payment Date. Notwithstanding the
foregoing, interest payable at Maturity shall be paid to the Person to whom
principal shall be paid. Except as otherwise provided in said Indenture, any
such interest not so paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to
EXHIBIT A-1
be fixed by the Trustee, notice of which shall be given to Holders of Securities
of this series not less than 15 days prior to such Special Record Date, or be
paid in such other manner as permitted by the Indenture.
Payment of the principal of this Security and interest hereon at
Maturity shall be made upon presentation of this Security at the Corporate Trust
Office of U.S. Bank Trust National Association, in New York, New York or at such
other office or agency as may be designated for such purpose by the Company from
time to time. Payment of interest on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register, except that if
such Person shall be a securities depositary, such payment may be made by such
other means in lieu of check as shall be agreed upon by the Company, the Trustee
and such Person. Payment of the principal of and interest on this Security, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of October 1, 1993
(such Indenture as originally executed and delivered and as supplemented or
amended from time to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and U.S. Bank Trust National Association
(formerly First Trust of New York, National Association) as successor trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the property mortgaged, pledged
and held in trust, the nature and extent of the security and the respective
rights, limitations of rights, duties and immunities of the Company, the Trustee
and the Holders of the Securities thereunder and of the terms and conditions
upon which the Securities are, and are to be, authenticated and delivered and
secured. The acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms and provisions of
the Indenture. This Security is one of the series designated above.
If any Interest Payment Date or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this
Security on such date may be made on the next succeeding Business Day; and, if
such payment is made or duly provided for on such Business Day, no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date or Stated Maturity, as the case may be, to such Business Day.
This Security shall be redeemable at the option of the Company at any
time prior to maturity, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount hereof to be redeemed, or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest on this Security, discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Yield plus 50 basis points, plus in each case, accrued and unpaid
interest to the Redemption Date. For purposes hereof, the following defined
terms shall have the meaning ascribed to them:
"Treasury Yield" means, for any Redemption Date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities of Series No. 8 that would be utilized, at
the time of selection and in accordance with customary financial
EXHIBIT A-2
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities of Series No. 8.
"Comparable Treasury Price" means, for any Redemption Date, (i) the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third Business Day
preceding the Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or
(ii) if that release (or any successor release) is not published or does not
contain those prices on that Business Day, (A) the average of the Reference
Treasury Dealer Quotations for the Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations for the Redemption Date, or (B)
if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all of the Quotations.
"Independent Investment Banker" means Banc of America Securities LLC or
its successor or, if such firm or its successor is unwilling or unable to select
the Comparable Treasury Issue, one of the remaining Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc of America
Securities LLC and Salomon Smith Barney Inc. and any other Primary Treasury
Dealer designated by, and not affiliated with, Banc of America Securities LLC,
Salomon Smith Barney Inc. and their respective successors, provided, however,
that if either of the foregoing or any of its designees ceases to be a Primary
Treasury Dealer, the Company will appoint another Primary Treasury Dealer as a
substitute and (ii) any other Primary Treasury Dealer selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government securities
dealer in New York City.
"Reference Treasury Dealer Quotations" means, for each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Independent Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker by the Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.
If an Event of Default shall occur and be continuing, the principal of
this Security may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains
EXHIBIT A-3
provisions permitting the Holders of a majority in principal amount of the
Securities then Outstanding, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in the Indenture and subject to certain limitations therein
set forth, this Security or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient, to pay when due the principal of and
interest on this Security when due.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of U.S. Bank Trust National Association, in New York, New York or such
other office or agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like tenor
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, and in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of the same series, of any
authorized denominations, as requested by the Holder surrendering the same, and
of like tenor upon surrender of the Security or Securities to be exchanged at
the office of U.S. Bank Trust National Association, in New York, New York or
such other office or agency as may be designated by the Company from time to
time.
Any Securities of this series which are presented to the Company and/or
the Trustee for exchange pursuant to a Registered Exchange Offer in accordance
with the terms thereof shall be exchanged for New Securities of equal principal
amount upon surrender to the Company and/or the Trustee of the Securities to be
exchanged; provided, however, that the Securities of this series so surrendered
for exchange shall be duly endorsed and accompanied by a letter of transmittal
or written instrument of transfer in form satisfactory to the Company, duly
executed by the registered holder thereof or its attorney who shall be duly
authorized in writing to execute such document. Whenever any Securities of this
series are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver to and in the name of each registered
holder that has properly tendered its Securities for exchange, the same
aggregate principal amount of New Securities as the Securities of this series
that have been so surrendered. For purposes hereof, the following defined terms
shall have the meaning ascribed to them:
"Registered Exchange Offer" means the proposed offer of the Company to
issue and deliver to the Holders of the Securities of this series that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities of this series, a like aggregate principal
amount of the New Securities.
EXHIBIT A-4
"New Securities" means debt securities of the Company identical in all
material respects to the Securities of this series presented for exchange
pursuant to the Registered Exchange Offer (except that the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
As used herein "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
The City of New York, New York or other city in which is located any office or
agency maintained for the payment of principal or interest on this Security, are
authorized or required by law, regulation or executive order to remain closed.
All other terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or interest on any Securities, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or director, as such, past,
present or future of the Company or of any predecessor or successor corporation
(either directly or through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that the Indenture and all the Securities
are solely corporate obligations and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of the Indenture and the issuance of the
Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee or an Authenticating Agent by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
EXHIBIT A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and its corporate seal to be hereunto affixed and attested.
PUBLIC SERVICE COMPANY OF COLORADO
By:
------------------------------------
[Title]
Attest:
-----------------------------
[Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
------------------------------
U.S. BANK TRUST OR U.S. BANK TRUST
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
as Trustee as Trustee
By: By:
--------------------------------- ---------------------------------
Authorized Officer AS AUTHENTICATING AGENT
By:
---------------------------------
Authorized Officer
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1)
------
- --------------
(1) To be inserted only in global bond.
EXHIBIT A-6
RESTRICTED NOTE
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER
THAN (A)(1) TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (4) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (5) IN
ACCORDANCE WITH ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (6) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
AND (B) IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF
EACH STATE OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR
HOLDING THIS SECURITY AGREES IT WILL FURNISH TO THE COMPANY AND THE
TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES
WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT
IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION
OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT.]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE PRECEDING
PARAGRAPH. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE RESALE
RESTRICTION TERMINATION DATE) WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY AS SET FORTH IN THE PRECEDING
PARAGRAPH, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHTS PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM (FORMS OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
TRUSTEE) COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE.](2)
-------------
(2) To be inserted only in Regulation S global bond.
EXHIBIT A-7
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
[please insert social security or other identifying number of assignee]
- --------------------------------------------------------------------------------
[please print or typewrite name and address of assignee]
- --------------------------------------------------------------------------------
the within Security of PUBLIC SERVICE COMPANY OF COLORADO and does hereby
irrevocably constitute and appoint ,
Attorney, to transfer said Security on the books of the within-mentioned
Company, with full power of substitution in the premises.
Dated:
-------------------------------------
------------------------------------------------------
Notice: The signature to this assignment must correspond with the name
as written upon the face of the Security in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT A-8
EXHIBIT B
[Form of Transferor Certificate]
CERTIFICATE TO PUBLIC SERVICE COMPANY OF COLORADO
AND TRUSTEE FIRST COLLATERAL TRUST BONDS, SERIES NO. 8 DUE OCTOBER 1, 2012
This is to certify that as of the date hereof with respect to U.S. $
principal amount of the above-captioned securities presented or surrendered on
the date hereof (the "Surrendered Bonds") for registration of transfer or for
exchange where the securities issuable upon such exchange are to be registered
in a name other than that of the undersigned holder (each such transaction being
a "transfer"), the undersigned holder of the Surrendered Bonds represents and
certifies for the benefit of Public Service Company of Colorado and U.S. Bank
Trust National Association, as Trustee, that the transfer of Surrendered Bonds
associated with such transfer complies with the restrictive legend set forth on
the face of the Surrendered Bonds for the reason checked below:
[ ] The Surrendered Bonds are being transferred to a person whom we
reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933) (a "QIB") that purchases
for its own account or for the account of a QIB to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule
144A under the Securities Act; or
[ ] The Surrendered Bonds are being transferred to an institution that is
an "accredited investor" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is acquiring the
Surrendered Bonds for investment purposes and not for distribution;1 or
[ ] The transfer of the Surrendered Bonds complies with Rule 144 under the
Securities Act;2 or
[ ] The transfer of the Surrendered Bonds complies with another applicable
exemption from the registration requirements of the Securities Act.2
[Name of holder]
Dated: ,
----------------- -------
[To be dated the date of presentation or surrender]
- --------------
(1) These transfers require that the transferee deliver a letter substantially
in the form of Exhibit C to Supplemental Indenture No. 9 dated as of September
1, 2002.
(2) These transfers may require an opinion of counsel.
EXHIBIT B-1
EXHIBIT C
[Form of Institutional Accredited
Investor Transferee Compliance Letter]
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202
Attention: Vice President and Treasurer
U.S. Bank Trust National Association
100 Wall Street
New York, New York 10005
[Attention: ]
-------------------------
Dear Ladies and Gentlemen:
In connection with our proposed purchase of the 7.875% First Collateral
Trust Bonds, Series No. 8 due 2012 (the "first collateral trust bonds") of
Public Service Company of Colorado, a Colorado corporation (the "Issuer"), we
confirm that:
1. We are purchasing the first collateral trust bonds for our
own account, or for one or more investor accounts for which we are
acting as a fiduciary or agent, in each case for investment, and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, as amended (the
"Securities Act"), subject to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and subject to our
or their ability to resell the first collateral trust bonds pursuant to
Rule 144A, Regulation S or any exemption from registration available
under the Securities Act.
2. We are an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act who
is purchasing first collateral trust bonds with a principal amount of
at least $250,000 and, if the first collateral trust bonds are to be
purchased for one or more accounts (the "investor accounts") for which
we are acting as fiduciary or agent, each such account is an
institutional accredited investor who is purchasing first collateral
trust bonds with a principal amount of at least $250,000. In the normal
course of business or our investing activities, we invest in or
purchase securities similar to the first collateral trust bonds and we
have such knowledge and experience in financial business matters that
we are capable of evaluating the merits and risks of purchasing the
first collateral trust bonds. We are aware that we (or any investor
account) may be required to bear the economic risk of an investment in
the first collateral trust bonds for an indefinite period of time and
we (or such investor account) are able to bear such risk for an
indefinite period.
3. We acknowledge that none of the Issuer, the initial
purchasers or any persons representing any of them has made any
representation to us with respect to any such entity or the offering or
sale of any first collateral trust bonds, other than the information
contained in the Issuer's offering memorandum dated September 18, 2002,
related to the first collateral trust bonds, which offering memorandum
has been delivered to us and upon which we are relying in making our
investment decision with respect to the first collateral trust bonds.
Accordingly, we acknowledge that no representation or warranty is made
by the initial purchasers as to the accuracy or completeness of such
materials. We have had access to such financial and other
EXHIBIT C-1
information concerning the Issuer and the first collateral trust bonds
as we have deemed necessary in connection with our decision to purchase
any of the first collateral trust bonds including an opportunity to ask
questions of, and request information from, the Issuer and the initial
purchasers.
4. We understand and agree that the offer and sale of the
first collateral trust bonds have not been registered under the
Securities Act and that such first collateral trust bonds are being
offered only in a transaction not involving any public offering within
the meaning of the Securities Act, and that (A) if we decide to resell,
pledge or otherwise transfer such first collateral trust bonds on which
a legend setting forth these restrictions appears, such first
collateral trust bonds may be resold, pledged or otherwise transferred
only (1) to the Issuer, (2) in a transaction entitled to an exemption
from registration provided by Rule 144 under the Securities Act, (3) so
long as such first collateral trust bonds are eligible for resale
pursuant to Rule 144A, to a person whom we reasonably believe is a
qualified institutional buyer that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or other transfer is being made in reliance on
Rule 144A, (4) outside the United States in a transaction meeting the
requirements of Regulation S, (5) in accordance with another exemption
from the registration requirements of the Securities Act (and based
upon an opinion of counsel acceptable to the Issuer) or (6) pursuant to
a registration statement which has been declared effective under the
Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States and (B) we will, and
each subsequent holder is required to, notify any purchaser of first
collateral trust bonds from us or it of the resale restrictions
referred to in (A) above, if then applicable. We acknowledge that the
foregoing restrictions apply to holders of beneficial interest in the
first collateral trust bonds, as well as to holders of the first
collateral trust bonds.
5. We understand that, on any proposed resale of any first
collateral trust bonds, we will be required to furnish to the trustee
and the Issuer such certifications, legal opinions and other
information as the trustee and the Issuer may reasonably require to
confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the first collateral trust
bonds purchased by us will bear a legend to the foregoing effect.
6. We acknowledge that the Issuer, the trustee, the initial
purchasers and others will rely upon the truth and accuracy of the
foregoing acknowledgements, representations and agreements and agree
that if any of the foregoing acknowledgements, representations or
agreements are no longer accurate, we shall promptly notify the Issuer,
the trustee and the initial purchasers. If we are acquiring the first
collateral trust bonds as a fiduciary or agent for one or more investor
accounts, we represent that we have sole investment discretion with
respect to each such account and we have full power to make the
foregoing acknowledgements, representations and agreements on behalf of
each account and that each such investor account is eligible to
purchase the first collateral trust bonds.
EXHIBIT C-2
The Issuer, the trustee and the initial purchasers are
entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
---------------------------
(Name of Purchaser)
By:
------------------------
Date:
---------------------------
EXHIBIT C-3
EXHIBIT D
[Form of Regulation S Transfer Certificate]
[date]
Public Service Company of Colorado
1225 17th Street
Denver, Colorado 80202
Attention: Vice President and Treasurer
U.S. Bank Trust National Association
100 Wall Street
New York, New York 10005
[Attention: ]
-------------------------
Dear Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal
amount of 7.875% First Collateral Trust Bonds, Series No. 8 due October 1, 2012
(the "Bonds") of Public Service Company of Colorado, a Colorado corporation (the
"Company"), we confirm that:
(a) the offer of the Bonds was not made to a person in
the United States;
(b) either (i) at the time the buy order was originated,
the transferee was outside the United States or we
and any person acting on our behalf reasonably
believed that the transferee was outside the United
States or (ii) the transaction was executed in, on or
through the facilities of a designated off-shore
securities market and neither we nor any person
acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the
United States in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(d) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities
Act.
In addition, if the sale is made during a
Distribution Compliance Period and the provisions of Rule 903(a)(3) or Rule
904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has
been made in accordance with the applicable provisions of Rule 903(a)(3) or Rule
904(b)(1), as the case may be.
EXHIBIT D-1
The Company and the Trustee are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
(Name of Transferor]
By:
---------------------------
Date:
--------------------------
EXHIBIT D-2
SCHEDULE A
SUPPLEMENTAL INDENTURES
DATE OF SERIES OF BONDS PRINCIPAL PRINCIPAL
SUPPLEMENTAL --------------- AMOUNT ISSUED AMOUNT
INDENTURE ------------- OUTSTANDING
--------- -----------
November 1, 1993 Series No. 1 $134,500,000 $134,500,000
January 1, 1994 Series No. 2 due 2001 $102,667,000 None
and
Series No. 2 due 2024 $110,000,000 $110,000,000
September 2, 1994 None None None
(Appointment of
Successor Trustee)
May 1, 1996 Series No. 3 $125,000,000 $125,000,000
November 1, 1996 Series No. 4 $250,000,000 $175,000,000
February 1, 1997 Series No. 5 $150,000,000 None
April 1, 1998 Series No. 6 $250,000,000 $250,000,000
August 15, 2002 Series No. 7 $ 48,750,000 $ 48,750,000
SCHEDULE A-1