EXHIBIT 1(b)
PUBLIC SERVICE COMPANY OF COLORADO
(a Colorado corporation)
FORM OF
UNDERWRITING AGREEMENT
(SENIOR DEBT SECURITIES)
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Public Service Company of Colorado, a corporation organized under the
laws of the State of Colorado (the "Company"), proposes to issue and sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), its Debt Securities of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto (the "Debt Securities") to be issued under its Indenture,
dated as of July 1, 1999 (the "Original Indenture"), from the Company to The
Bank of New York, as successor trustee (the "Trustee"), as heretofore
supplemented and as it will be further supplemented by a supplemental indenture
creating the Debt Securities (said Original Indenture, as so supplemented and to
be further supplemented, and said supplemental indenture being hereinafter
referred to as the "Indenture" and the "Supplemental Indenture", respectively).
If the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form, including a prospectus, for the registration under the Act of the Debt
Securities, which registration statement has become effective. Such registration
statement and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement (which date is set forth in Schedule I
hereto). Any such amendment or supplement was filed with the Commission and any
such amendment has become effective. Each prospectus used before the
registration statement became effective, and any prospectus that omitted the
offering terms that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a
"preliminary prospectus". The Company will file with the Commission a prospectus
supplement (the "Prospectus Supplement") relating to the Debt Securities
pursuant to Rule 424 and/or Rule 434 under the Act. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on or
prior to the date of this Agreement have been delivered to you and copies of the
Prospectus Supplement will be delivered to you promptly after it is filed with
the Commission. Such registration statement, as amended prior to the date of
this Agreement, and such prospectus, as amended and supplemented prior to the
date of this Agreement and as supplemented by the Prospectus Supplement, are
hereinafter called the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the date of this Agreement and, if the Company files any document pursuant to
the Exchange Act after the date of this Agreement and prior to the termination
of the offering of the Debt Securities by the Underwriters, which documents are
deemed to be incorporated by reference into the Prospectus, the term
"Prospectus" shall refer also to said prospectus as supplemented by the
documents so filed from and after the time said documents are filed with the
Commission. There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement or any documents incorporated by reference therein by the Act, the
Exchange Act or the rules and regulations thereunder which have not been so
filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to (A) that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus. Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 of the Act, complied when so filed in all material
respects with the rules under the Act, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
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(c) This Agreement has been duly authorized, executed and delivered by
the Company.
(d) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act. The
Prospectus, as of the date hereof, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty as to the information contained in or omitted from the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriters through the Representatives
specifically for inclusion therein.
(e) Deloitte & Touche LLP, which audited the financial statements
incorporated by reference in the Registration Statement, (A) are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder and (B) do not provide to the Company or its subsidiaries
any non-audit services which are prohibited by Section 10A(g) or (h) of the
Exchange Act.
(f) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries incorporated by reference in the
Registration Statement and Prospectus present fairly in all material respects
the financial condition, results of operations, cash flows and changes in
financial position of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the Act and the
Exchange Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). Except as disclosed in or
incorporated by reference in the Registration Statement or Prospectus, neither
the Company nor any of its subsidiaries has any contingent obligations which are
material to the Company and its consolidated subsidiaries considered as one
enterprise.
(g) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to be
so qualified would not have a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(h) The Company has no subsidiaries which would be deemed significant
subsidiaries under Regulation S-X.
(i) Except as may otherwise be reflected in or contemplated by the
Prospectus, since the respective dates as of which information is given therein
(i) there has been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or
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properties of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business and (ii) neither
the Company nor any of its subsidiaries has entered into any transactions which
are material to the Company and its subsidiaries considered as one enterprise,
other than in the ordinary course of business; and, except as so reflected or
contemplated, neither the Company nor any of its subsidiaries has any contingent
obligations which are material to the Company and its subsidiaries considered as
one enterprise.
(j) Neither the execution and delivery of this Agreement and the
Supplemental Indenture, the issue and sale of the Debt Securities, nor the
consummation of any other of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof will conflict with, result in
a breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, (i)
the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties except, in the case of clause
(ii), any such conflict, breach or violation which would not, individually or in
the aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(k) The issuance and sale by the Company of the Debt Securities
pursuant to this Agreement have been duly authorized by all necessary corporate
action; and, when issued, authenticated and delivered to the Underwriters
pursuant to this Agreement against payment of the consideration theretofore
specified herein, the Debt Securities will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except as enforcement
thereof may be limited by laws or principles of equity affecting creditors'
rights, including without limitation bankruptcy and insolvency laws and state
laws which affect the enforcement of certain remedial provisions of the
Indenture, and will be entitled to the benefits of the Indenture.
(l) The Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by laws or
principles of equity affecting creditors' rights, including without limitation
bankruptcy and insolvency laws and state laws which affect the enforcement of
certain remedial provisions of the Indenture.
(m) The issuance and sale of the Debt Securities have been duly
authorized and approved by an order of The Public Utilities Commission of the
State of Colorado and such order is final and in full force and effect on the
date hereof, the time for appeal therefrom or review thereof or intervention
with respect thereto having expired; no further approval, authorization,
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consent or other order of any public board or body is legally required in
connection with the transactions contemplated by this Agreement and the
Indenture, except as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Debt Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(n) The Company has good title to the real properties specifically or
generally described or referred to in the Company's first mortgage indenture and
in the Company's collateral trust indenture as subject to the respective liens
thereof (except such real property as may sold, exchanged or otherwise disposed
of), subject only to (a) in the case of all such properties, the lien of the
Company's first mortgage indenture and "permitted encumbrances" (as defined in
the Company's first mortgage indenture) and (b) in the case of such properties
which are used or to be used in or in connection with the Electric Utility
Business (as defined in the Company's collateral trust indenture) (whether or
not such is the sole use of such property) the lien of the Company's collateral
trust indenture and Permitted Liens (as defined in the Company's collateral
trust indenture).
(o) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(p) The Company is not, and after giving effect to the offering and
sale of the Debt Securities and the application of the proceeds thereof as
described in the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, without taking account of any exemption arising
out of the number of holders of the Company's securities.
(q) Except as set forth in, or incorporated by reference in, the
Prospectus Supplement, the Company and its subsidiaries (i) are in compliance
with any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of
any such permits, licenses or approvals, and (iv) have not received notice of
any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or any such liability
would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the respective principal amounts of the Debt Securities set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than eight full business
days thereafter as the Representatives and the Company shall designate), which
date and time may be postponed by agreement between the Representatives and the
Company (such date and time being herein called the "Closing Date"). Delivery of
the Debt Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order
of the Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Debt Securities will be delivered in definitive
registered form except that, if for any reason the Company is unable to deliver
the Debt Securities in definitive form, the Company reserves the right, as
provided in the Indenture, to make delivery in temporary form. Any Debt
Securities delivered in temporary form will be exchangeable without charge for
Debt Securities in definitive form. Unless otherwise indicated on Schedule I,
the Debt Securities will be registered in the name of Cede & Co., as nominee of
The Depository Trust Company and in the principal amounts set forth in Schedule
II hereto. The Debt Securities will be made available to the Representatives for
checking in New York, New York, not later than 2:00 p.m., New York City time, on
the business day preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Debt Securities is required to be
delivered under the Act, the Company will promptly advise the Representatives
(i) when any amendment to the Registration Statement shall have become
effective, (ii) when any subsequent supplement to the Prospectus (including
documents deemed to be incorporated by reference into the Prospectus) has been
filed, (iii) of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for any additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose. The Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(including documents deemed to be incorporated by reference into the Prospectus)
unless the Company has furnished to the Representatives a copy for your review
prior to filing and will not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Debt Securities
is required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will make a
filing with the Commission pursuant to Section 13 or 14 of the Exchange Act,
which will correct such statement or omission or will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not be
audited) of the Company, for a twelve-month period beginning after the date of
the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under
the Act, as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Act), which will
satisfy the provision of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T -1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Debt Securities for sale
under the laws of such jurisdictions as the Representatives may designate and
will maintain such qualifications in effect so long as required for the
distribution of the Debt Securities; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(f) So long as the Debt Securities are outstanding, the Company will
furnish (or cause to be furnished) to each of the Representatives, upon request,
copies of (i) all reports to stockholders of the Company and (ii) all reports
and financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any debt securities of the Company (except under prior contractual
commitments which have been disclosed to you), without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld.
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5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Debt
Securities to the Underwriters, all fees and expenses of the Company's counsel
and accountants, all costs and expenses incident to the preparing, printing and
filing of the Registration Statement (including all exhibits thereto), the
preliminary prospectus, the Prospectus (including all documents incorporated by
reference therein) and any amendments thereof or supplements thereto, all costs
and expenses (including fees and expenses of counsel) incurred in connection
with "blue sky" qualifications, the determination of the legality of the Debt
Securities for investment by institutional investors and the rating of the Debt
Securities, and all costs and expenses of the printing and distribution of all
documents in connection with this underwriting. Except as provided in this
Section 5 and Section 8 hereof, the Underwriters will pay all their own costs
and expenses, including the fees of their counsel and any advertising expenses
in connection with any offer they may make.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Debt Securities shall be subject, in the
discretion of the Representatives, to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof and
the Closing Date, to the accuracy of the statements of Company officers made in
any certificates given pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) The Prospectus Supplement relating to the Debt Securities shall
have been filed with the Commission pursuant to Rule 424(b) and/or Rule 434
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of Ann E. Hopfenbeck, Assistant General Counsel, Xcel Energy
Services, Inc., Attorney for the Company, and Jones Day, counsel to the Company,
substantially in the form included as Exhibit A and Exhibit B, respectively.
(c) The Representatives shall have received from Dewey Ballantine
LLP, counsel for the Underwriters, such opinion or opinions dated the Closing
Date with respect to the incorporation of the Company, this Agreement, the
validity of the Indenture, the Debt Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set
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forth in clause (a) and (h) of this Section 6 and to the further effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
and
(ii) there has been no material adverse change in the
condition of the Company and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, from that set forth
or contemplated by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from Deloitte &
Touche LLP, independent public accountants for the Company (dated the date of
this Agreement and Closing Date, respectively, and in form and substance
satisfactory to the Representatives) advising that (i) they are independent
public accountants as required by the Act and published rules and regulations of
the Commission thereunder, (ii), in their opinion, the consolidated financial
statements and supplemental schedules for the year ended December 31, 2002
incorporated by reference in the Registration Statement or Prospectus and
covered in their opinion filed with the Commission under Section 13 of the
Exchange Act comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations of the Commission thereunder, (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company, a reading of the minutes
of meetings of the Board of Directors, committees thereof, and of the
Shareholder of the Company since the date of the most recent audited financial
statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter, and on the
basis of such limited review and procedures nothing came to their attention that
caused them to believe that: (a) any material modifications should be made to
any unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus for them
to be in conformity with generally accepted accounting principles or any
unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations of the Commission
applicable to Form 10-Q; (b) with respect to the period subsequent to the date
of the most recent financial statements included or incorporated by reference in
the Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the capital stock of
the Company, increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company and its consolidated subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated by reference in the
Prospectus to such specified date there were any decreases, as
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compared with the corresponding period in the preceding year, in operating
revenues, operating income or net income of the Company and its subsidiaries,
except in all instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation is not deemed necessary by
the Representatives; and (iv) they have carried out specified procedures
performed for the purpose of comparing certain specified financial information
and percentages (which is limited to financial information derived from general
accounting records of the Company) included or incorporated by reference in the
Registration Statement and Prospectus with indicated amounts in the financial
statements or accounting records of the Company and (excluding any questions of
legal interpretation) have found such information and percentages to be in
agreement with the relevant accounting and financial information of the Company
referred to in such letter in the description of the procedures performed by
them.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Debt Securities on the terms and in the manner contemplated by the
Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Debt Securities on the terms and in the manner contemplated by
the Prospectus.
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact
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which in the opinion of counsel for the Underwriters is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the Company
to sell and deliver the Debt Securities are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, threatened.
(b) The order of the Colorado Public Utilities Commission
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have
been fulfilled, this Agreement and all obligations of the Company hereunder may
be cancelled on or at any time prior to the Closing Date by the Company. Notice
of such cancellation shall be given to the Underwriters in writing or by
telephone or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the Debt
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Debt Securities, including the reasonable fees and disbursements
of counsel for the Underwriters.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise insofar as such losses, claims, damages
or liabilities
11
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Debt Securities as originally
filed or in any amendment thereof, or in the Preliminary Prospectus Supplement
or the Prospectus or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and agrees to reimburse each such indemnified party for
any legal or other expenses as reasonably incurred by them in connection with
investigating or defending any such loss, claim, damages, liability or action;
provided that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use therein and provided further that such
indemnity with respect to a prospectus included in the registration statement or
any amendment thereto prior to the supplementing thereof with the Prospectus
Supplement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Debt Securities which are the subject
thereof if such person was not sent or given a copy of the Prospectus (but
without the documents incorporated by reference therein) at or prior to the
confirmation of the sale of such Debt Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such Prospectus was corrected in the Prospectus,
provided that the Company shall have delivered the Prospectus, in a timely
manner and in sufficient quantities to permit such delivery by the Underwriters.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that if the defendants in any such action include both the indemnified party and
the indemnifying party
12
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnified parties under subparagraphs (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Debt Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
13
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation to purchase the
Debt Securities which it has agreed to purchase hereunder (in this Section
called the "Unpurchased Debt Securities"), the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Unpurchased Debt Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Unpurchased Debt Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Unpurchased Debt Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Unpurchased Debt Securities,
or the Company notifies the Representatives that it has so arranged for the
purchase of such Unpurchased Debt Securities, the Representatives or the Company
shall have the right to postpone the Closing Date for such Unpurchased Debt
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Unpurchased Debt Securities.
14
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Debt Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Debt Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Debt Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Debt Securities which such Underwriter agreed to purchase
hereunder) of the Unpurchased Debt Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Debt Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the Debt
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Unpurchased Debt Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Debt Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) if a banking moratorium shall have been declared either by
Federal, Colorado or New York State authorities, (iii) if trading in any
securities of the Company shall have been suspended or halted, or (iv) if there
shall have occurred any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a war or national
emergency or any other calamity or crisis the effect of which on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Debt Securities on the terms and in the manner
contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Debt Securities.
The provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
15
13. Notices. All communications hereunder will be in writing and, if
sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address set forth for that purpose in Schedule 1
hereto or, if sent to the Company, will be mailed, delivered or transmitted and
confirmed to it at 800 Nicollet Mall, Suite 2900, Minneapolis, Minnesota 55402,
attention: Vice President and Treasurer (fax no.: (612) 215-5370) and confirmed
to the General Counsel (fax no.: (612) 215-4501).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in counterparts, all
of which, taken together, shall constitute a single agreement among the parties
to such counterparts.
17. Representation of the Underwriters. The Representatives represent
and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
18. Other. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
PUBLIC SERVICE COMPANY OF COLORADO
By
----------------------------------
Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[NAME OF REPRESENTATIVE]
By
-------------------------------
For itself or themselves and as
Representatives of the several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
17
SCHEDULE I
Underwriting Agreement dated _____________
Registration Statement No. 333-____________
Representatives and Addresses:
Debt Securities:
Designation: _______________
Principal Amount: $______________
Supplemental Indenture dated as of: ________________
Date of Maturity: ____________
Interest Rate: ______% per annum, payable __________ and ________
of each year, commencing ____________.
Purchase Price: ______% of the principal amount thereof, plus
accrued interest from ____________ to the date of
payment and delivery.
Public Offering Price: ______% of the principal amount thereof, plus
accrued interest from ____________ to the date of
payment and delivery.
Redemption Provisions:
Payment to be made in federal (same day) funds. ____ Yes ____ No
Closing Date and Location:
Office for Delivery of Debt Securities:
Office for Payment of Debt Securities:
Office for Checking of Debt Securities:
SCHEDULE II
NAME AMOUNT
Total................................................... -----------
EXHIBIT A
FORM OF OPINION OF ANN E. HOPFENBECK
RE: $ PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE , %
OF PUBLIC SERVICE COMPANY OF COLORADO, A COLORADO CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Public Service Company of Colorado, a Colorado corporation
(the "Company") with respect to the issue and sale by the Company of $_________
principal amount of _______% Debt Securities, Series No. due (the "Debt
Securities"). In connection therewith I have participated in the preparation of
the proceedings for the issuance and sale of the Debt Securities including the
Underwriting Agreement dated , between you and the Company relating to
your purchase of the Debt Securities (the "Agreement") and have either
participated in the preparation of or examined the Trust Indenture dated
July 1, 1999, from the Company to The Bank of New York, as successor trustee
(the "Trustee"), as heretofore supplemented and as it will be further
supplemented by the Supplemental Indenture creating the Debt Securities (said
indenture, as so supplemented and to be further supplemented, being hereafter
referred to as the "Indenture"). This letter is furnished to the Underwriters
pursuant to Section 6(b) of the Agreement. Except as otherwise defined herein,
terms used in this letter that are defined in the Agreement are used herein as
so defined. I also have participated in the preparation of or examined the
registration statement and any amendments thereto and the accompanying
prospectuses and any supplements thereto, as filed under the Securities Act of
1933, as amended (the "Act"), with respect to the Debt Securities. Whenever the
terms "Registration Statement" or "Prospectus" are used herein, they shall have
the respective meanings set forth in the Agreement. My examination has extended
to all statutes, records, instruments, and documents which I have deemed
necessary to examine for the purposes of this opinion.
I am of the opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Colorado with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
2. The Agreement and the Indenture have been duly authorized,
executed and delivered by the Company; the issuance and sale of the
Debt Securities have been duly authorized by all necessary corporate
actions of the Company;
3. The issuance and sale of the Debt Securities have been duly
authorized and approved by an order of The Public Utilities Commission
of the State of Colorado
and such order is final and in full force and effect on the date
hereof, the time for appeal therefrom or review thereof or intervention
with respect thereto having expired; no further approval,
authorization, consent or other order of any public board or body in
the State of Colorado is legally required in connection with the
transactions contemplated by the Agreement and the Indenture, except as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Debt Securities by
the Underwriters in the manner contemplated by the Agreement and in the
Prospectus;
4. Neither the execution and delivery of the Agreement, the
issue and sale of the Debt Securities, nor the consummation of any
other of the transactions herein or therein contemplated, nor the
fulfillment of the terms thereof will conflict with, result in a breach
or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries under (i)
the charter or by-laws of the Company or any of its subsidiaries; (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is
subject; or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its subsidiaries or any of its or their properties except, in
the case of clause (ii) or (iii), any such conflict, breach or
violation, if it did exist, would not, individually or in the
aggregate, cause a material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business;
5. The facsimile signature of a Senior Vice President or Vice
President of the Company in lieu of his manual signature on the Debt
Securities and the facsimile signature of the Secretary or an Assistant
Secretary of the Company attesting the corporate seal in lieu of his
manual signature on the Debt Securities have been duly and properly
authorized by the Board of Directors of the Company, are not
inconsistent with the provisions of the charter or by-laws of the
Company and are valid and effective under the laws of the State of
Colorado; and the facsimile signatures of such officers on the Debt
Securities have the same legal effect as though they had manually
signed and attested the Debt Securities as such respective officers;
6. The descriptions in the Registration Statement and
Prospectus of Colorado state statutes and legal and governmental
proceedings are accurate and fairly present the information purported
to be given;
7. There is no pending, or to my knowledge threatened, suit or
proceeding before any court or governmental agency, authority or body
or any arbitration involving the Company or any of its subsidiaries
required to be disclosed in the Prospectus which is not adequately
disclosed in the Prospectus; and
8. The franchises held by the Company, together with the
applicable Certificates of Convenience and Necessity issued by The
Public Utilities Commission of the State of Colorado, give the Company
all necessary authority for the maintenance and operation of its
properties and business as now conducted, and are free from burdensome
restrictions or conditions of an unusual character.
In the course of my participation in the preparation of the Prospectus
I made investigations as to the accuracy of certain of the statements of fact
contained therein, I discussed other matters with officers, employees, and
representatives of the Company, and I examined various corporate records and
data. While I do not pass upon or assume responsibility for, and shall not be
deemed to have independently verified, the accuracy and completeness of the
statements contained in the Prospectus (except as to matters set forth in
paragraphs 6 and 7 above), nothing has come to my attention that would lead me
to believe that the Prospectus as of the date of the Agreement or at the date
hereof contained or contains an untrue statement of material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
My opinions herein are limited to the laws of the State of Colorado.
For purposes of rendering their opinions of even date herewith to the
Underwriters, Jones Day and Dewey Ballantine LLP are each is entitled to
rely on my opinions in paragraphs 1, 2 and 3 above as to all matters of Colorado
law as if such opinions were addressed to them.
Respectfully submitted,
By
------------------------------------
Ann E. Hopfenbeck
Assistant General Counsel
Xcel Energy Services, Inc.
EXHIBIT B
FORM OF OPINION OF JONES DAY
RE: $ PRINCIPAL AMOUNT OF DEBT SECURITIES, SERIES DUE , %
OF PUBLIC SERVICE COMPANY OF COLORADO, A COLORADO CORPORATION.
Gentlemen:
We have acted as counsel to Public Service Company of Colorado, a
Colorado corporation (the "Company"), in connection with the sale by the Company
pursuant to the Underwriting Agreement, dated (the "Agreement"), by
and among the Company and the Underwriters named on Schedule I thereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), of $ aggregate principal amount of % Debt
Securities, Series No. due of the Company (the "Debt Securities") being
issued on this date under the Company's Indenture, dated as of July 1, 1999, to
The Bank of New York, as successor Trustee (the "Trustee"), as heretofore
supplemented and as it is being further supplemented by a supplemental indenture
creating the Debt Securities (said Indenture, as so supplemented, being
hereafter referred to as the "Indenture"). This letter is furnished to the
Underwriters pursuant to Section 6(b) of the Agreement. Except as otherwise
defined herein, terms used in this letter that are defined in the Agreement are
used herein as so defined.
In connection with the opinions expressed herein, we have examined such
documents and records, including an examination of originals or copies certified
or otherwise identified to our satisfaction, and matters of law as we have
deemed necessary for purposes of this opinion. Based upon the foregoing and
subject to the further assumptions, qualifications and limitations stated
herein, we are of the opinion that:
1. The Indenture is in due and proper form and, assuming that
the Indenture (i) has been duly authorized by the Company and the
Trustee, has been duly executed and delivered by the Company (to the
extent such execution and delivery is not governed by New York law) and
has been duly executed and delivered by the Trustee and (ii)
constitutes a valid and binding obligation of the Company under the
laws of the State of Colorado and a valid and binding obligation of the
Trustee, the Indenture constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms;
2. To the extent governed by New York law, the Agreement and
Indenture have been duly executed and delivered by the Company;
3. The Company is not, and after giving effect to the offering
and sale of the Debt Securities and the application of the proceeds
thereof as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, without taking account of any exemption arising out of the
number of holders of the Company's securities;
4. The Debt Securities are in due and proper form and,
assuming the issuance and sale of the Debt Securities have been duly
authorized by all necessary corporate action, when duly executed,
authenticated and delivered to the Underwriters pursuant to the terms
of the Agreement against payment of the consideration set forth
therein, the Debt Securities will be legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by laws and principles of
equity affecting creditors' rights, including without limitation
bankruptcy and insolvency laws and state laws which affect the
enforcement of certain remedial provisions of the Indenture, and
entitled to the benefits and security of the Indenture;
5. Assuming that the issuance and sale of the Debt Securities
have been duly authorized and approved by an order of The Public
Utilities Commission of the State of Colorado and such order is final
and in full force and effect on the date hereof, and that the time for
appeal therefrom or review thereof or intervention with respect thereto
have expired, no approval, authorization, consent or order of any
public board or body is legally required in connection with the
transactions contemplated by the Agreement and the Indenture;
6. The Debt Securities and the Indenture conform as to legal
matters to the description of the terms thereof contained in the
Prospectus;
7. The descriptions in the Registration Statement and
Prospectus of United States federal statutes are accurate and fairly
present the information purported to be given;
We have not independently verified and are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness, except
and to the extent as set forth in paragraphs 6 and 7 above, of the information
included in the Prospectus. We have participated in the preparation of the
Prospectus. From time to time in connection therewith, we have had discussions
with officers, directors and employees of the Company and Xcel Energy Inc., a
Minnesota corporation and the parent corporation of the Company, with
representatives of Deloitte & Touche LLP, the independent accountants who
examined certain of the financial statements of the Company, and with the
Underwriters and counsel to the Underwriters. Based upon our participation and
discussions described above, we have no reason to believe that the Prospectus,
as of its date or the date hereof, included or includes any untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that we express no view as to (i) the
financial statements, financial schedules and other financial data included or
incorporated by reference in the Prospectus or (ii) the information referred to
under the caption "Independent Accountants" as having been included or
incorporated by reference in the Prospectus and covered by the report of
Deloitte & Touche LLP).
The opinions set forth above are subject to the following assumptions,
qualifications and limitations:
We have assumed, for purposes of the opinions expressed herein, the
legal capacity of all natural persons executing documents, the genuineness of
all signatures, the authenticity of original and certified documents and the
conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies. For the purposes of the opinions and views
expressed herein, we also have assumed that each of the Underwriters and the
Trustee has duly authorized, executed and delivered the documents to which each
of them is a party and that each of such documents is the valid, binding and
enforceable obligation of each of the Underwriters and the Trustee,
respectively.
As to any facts relevant to the opinions expressed herein, we have
relied upon and assume the accuracy of the representations and warranties of the
Underwriters contained in the Agreement, and compliance on the part of the
Underwriters with their covenants and agreements contained therein.
Our opinion set forth in paragraph 1 with respect to the enforceability
of the Indenture is subject to (i) bankruptcy, insolvency, fraudulent transfer
or conveyance, voidable preference, reorganization, moratorium or other similar
laws, regulations or judicial opinions of general applicability relating to or
affecting creditors' rights or remedies generally and (ii) general equitable
principles, whether such principles are considered in a proceeding at law or at
equity.
We express no opinion as to the validity, binding effect or
enforceability of any provision in any document:
(i) relating to indemnification, contribution or exculpation in
connection with violations of any securities laws or statutory duties or public
policy, or in connection with willful, reckless or unlawful acts or gross
negligence of the indemnified or exculpated party or the party receiving
contribution;
(ii) relating to choice of governing law to the extent that the
enforceability of any such provision is to be determined by any court other than
a court of the State of New York; or
(iii) requiring or relating to payment of interest (or discount or
equivalent amounts) or any premium payment at a rate or in an amount, after the
maturity or after or upon acceleration of the respective liabilities evidenced
or secured thereby or after or during the continuance of any default, event of
default or other circumstance, or upon prepayment, that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a
penalty or a forfeiture.
Our opinions as to validity, binding effect or enforceability are
subject to the effect of generally applicable rules of law that:
(i) limit the availability of a remedy in certain circumstances when
another remedy has been elected;
(ii) may, where less than all of a contract may be unenforceable, limit
the enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange; or
(iii) govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs.
Our examination of matters of law in connection with the opinions
expressed herein have been limited to, and accordingly our opinions herein are
limited to, the federal securities laws of the United States of America and the
laws of the State of New York, in each case as currently in effect. In
connection with our opinions set forth herein, we express no opinion as to any
matters of, or that relate to, the laws of any other jurisdiction, including the
laws of the State of Colorado. To the extent such opinions relate to any
provision of Colorado law, we direct you to the opinion dated the date hereof of
Ann E. Hopfenbeck, Esq., Assistant General Counsel of Xcel Energy Services,
Inc. and a member of the Colorado bar, which opinion previously has been
delivered to you.
It should be understood that the scope of our representation does not
include providing legal services to any financial institution or financial
institution-affiliated party with regard to any matter (a "financial
institutions regulatory matter") the resolution of which requires reference to
any provision of Title 12 of the United States Code as in effect from time to
time, the policies, procedures, guidelines or practices of any state regulator
with respect to any such federal or state law or regulation, or any other
federal or state law or regulation or regulatory policy, procedure or practice
expressly applicable to financial institutions or, in their capacities as such,
financial institution-affiliated parties or, if not expressly applicable, then
to the extent applicable by implication or actually applied to a financial
institution or financial institution-affiliated party. We express no opinion
regarding the compliance by any Underwriter with any such financial institutions
regulatory matter.
This letter is furnished by us, as special counsel to the Company, to
you, as the Representatives, solely for the benefit of the Underwriters and
solely with respect to the purchase of the Debt Securities from the Company by
the Underwriters upon the understanding that we are not hereby assuming any
professional responsibility to any other person whatsoever, and that this letter
is not to be used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,