PUBLIC SERVICE COMPANY OF COLORADO
$575,000,000
$300,000,000 4.375% First Collateral Trust Bonds, Series No. 14, due 2008
$275,000,000 5.50% First Collateral Trust Bonds, Series No. 15, due 2014
UNDERWRITING AGREEMENT
New York, New York
September 2, 2003
Banc One Capital Markets, Inc.
1 Bank One Plaza
Chicago, Illinois 60670
McDonald Investments Inc.
800 Superior Avenue
Cleveland, Ohio 44114
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
As Representatives of the several Underwriters
Ladies and Gentlemen:
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
several parties named in Schedule I hereto (the "Underwriters"), for whom you
(the "Representatives") are acting as representatives, $300,000,000 principal
amount of the Company's 4.375% First Collateral Trust Bonds, Series No. 14, due
2008 and $275,000,000 principal amount of the Company's 5.50% First Collateral
Trust Bonds, Series No. 15, due 2014 (collectively, the "Bonds"). The Bonds are
to be issued under the Company's Indenture, dated as of October 1, 1993 (the
"Original Indenture") to U.S. Bank Trust National Association, as successor
trustee (the "Trustee"), as heretofore supplemented and as it will be further
supplemented by a supplemental indenture creating the Bonds (said Original
Indenture, as so supplemented and to be further supplemented, and said
supplemental indenture being hereafter referred to as the "Indenture" and the
"Supplemental Indenture", respectively). Certain terms used herein are defined
in Section 16 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) (i) A registration statement on Form S-3 (File No.
333-104504) in respect of the Bonds and certain other securities has
been prepared and filed with the Commission in accordance with the
provisions of the Act; such registration statement and any
post-effective
amendment thereto have been declared effective by the Commission; such
registration statement in the form in which it became effective and
(including the exhibits thereto, but excluding the Statements of
Eligibility in Form T-1) is hereinafter called the "Registration
Statement"; and the prospectus relating to the Bonds, in the form in
which it was included in the Registration Statement at the time it
became effective, as supplemented by the prospectus supplement
containing the terms of the Bonds and the terms of the offering
thereof, in the form in which it is first filed with the Commission
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus";
(ii) Pursuant to Rule 429 under the Act, the
Prospectus will be used as a combined prospectus relating to the
Registration Statement and to the registration statement filed by the
Company with the Commission on June 29, 1999 (registration no.
333-81791) which became effective on July 6, 1999; unless the context
otherwise requires, all references in this Agreement to the
Registration Statement shall be deemed to include such prior
registration statement;
(iii) Any reference herein to the Registration
Statement, any preliminary prospectus 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 under the Act, as of the effective date
for purposes of the Registration Statement or the date thereof for
purposes of any preliminary prospectus or the Prospectus; any reference
to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to any amendment or
supplement to any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such preliminary prospectus or Prospectus, under the Exchange Act, and
incorporated by reference in such preliminary prospectus or Prospectus.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission and no order preventing or suspending the
use of any preliminary prospectus or the Prospectus has been issued by
the Commission;
(c) The Registration Statement, when it became effective,
conformed, and any further amendments thereto, when they become
effective, will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act, and the Prospectus and any
amendments or supplements thereto, when filed with the Commission, will
conform in all material respects to the requirements of the Act and the
Trust Indenture Act;
(d) The Registration Statement, when it became effective,
and any further amendments thereto when they become effective, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus and any
amendments and supplements thereto, when they are filed or transmitted
for filing with the Commission and at the Closing Date, will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light
of the
2
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties contained in this
subsection (d) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing
by an Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus or any amendment or supplement
to either thereof;
(e) The documents incorporated by reference in the
Registration Statement or Prospectus, when they were filed with the
Commission, and any further documents so filed and incorporated by
reference, when they are filed with the Commission or become effective,
as the case may be, complied with and will comply in all material
respects with the requirements of the Exchange Act or the Act, as the
case may be;
(f) The Company is not, and after giving effect to the
offering and sale of the Bonds 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;
(g) The Company is subject to and in full compliance with
the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act;
(h) The statements in the Prospectus under the headings
"Supplemental Description of the First Collateral Trust Bonds,"
"Description of the First Collateral Trust Bonds," and "Description of
the 1939 Mortgage" fairly summarize the matters therein described;
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(j) The Indenture has been duly authorized and the
Indenture (excluding the Supplemental Indenture) has been duly executed
and delivered by the Company and is in due and proper form and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) when the Supplemental Indenture is duly
executed and delivered the Indenture will constitute a legal, valid and
binding mortgage of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of mortgagees'
and other creditors' rights, including, without limitation, bankruptcy
and insolvency laws and state laws which affect the enforcement of
certain remedial provisions of the Indenture; provided, however, that
such state laws will not render the remedies afforded by the Indenture
inadequate for the practical realization of the benefit of the security
provided thereby;
(k) The issuance and sale by the Company of the Bonds
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 therefor specified herein, the Bonds will be valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by laws or
principles of equity affecting generally the enforcement of mortgagees'
and other creditors' rights, including, without limitation, bankruptcy
and
3
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 PSCO 1939 Mortgage (as defined in the Indenture)
has been duly authorized and the PSCO 1939 Mortgage (excluding the
Mortgage Supplement) has been duly executed and delivered by the
Company and is in due and proper form and (assuming the PSCO 1939
Mortgage has been duly authorized, executed and delivered by the
trustee thereunder) when the Mortgage Supplement is duly executed and
delivered the PSCO 1939 Mortgage will constitute a legal, valid and
binding mortgage of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of mortgagees'
and other creditors' rights, including, without limitation, bankruptcy
and insolvency laws and state laws which affect the enforcement of
certain remedial provisions of the PSCO 1939 Mortgage; provided,
however, that such state laws will not render the remedies afforded by
the PSCO 1939 Mortgage inadequate for the practical realization of the
benefit of the security provided thereby;
(m) The issuance and delivery by the Company of the Class
A Bonds (as defined in the Indenture) to be made the basis of the
authentication and delivery of the Bonds (the "Class A Bonds") have
been duly authorized by all necessary corporate action; and when (i)
the Class A Bonds have been issued, authenticated and delivered to the
Trustee pursuant to the Indenture and (ii) the Bonds have been issued,
authenticated and delivered to the Underwriters pursuant to this
Agreement against payment of the consideration therefor specified
herein, the Class A Bonds will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by laws or principles of equity
affecting generally the enforcement of mortgagees' and other creditors'
rights, including, without limitation, bankruptcy and insolvency laws
and state laws which affect the enforcement of certain remedial
provisions of the PSCO 1939 Mortgage, and will be entitled to the
benefits of the PSCO 1939 Mortgage;
(n) The issuance and sale of the Bonds, and the issuance
and delivery of the Class A Bonds, have been duly authorized and
approved by an order of The Public Utilities Commission of the State of
Colorado and such order is final and in full force and effect on the
date hereof, the time for appeal therefrom or review thereof or
intervention with respect thereto having expired; no further approval,
authorization, consent or other order of any public board or body is
legally required in connection with the transactions contemplated by
this Agreement, the Indenture or the PSCO 1939 Mortgage, except for the
registration under the Act of the Bonds and as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Bonds by the Underwriters in the manner
contemplated herein and in the Prospectus;
(o) Neither the execution and delivery of this Agreement
or the Supplemental Indenture, the issue and sale of the Bonds, 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, other than the liens and security interests
created by the Indenture and the PSCo 1939 Mortgage, 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
4
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;
(p) The Company has good title to the properties
specifically or generally described or referred to in the Indenture and
in the PSCO 1939 Mortgage as subject to the respective liens thereof
(except such property as may have been sold, exchanged or otherwise
disposed of) subject only to (a) in the case of all such properties,
the lien of the PSCO 1939 Mortgage and "permitted encumbrances" (as
defined in the PSCO 1939 Mortgage) and (b) in the case of such
properties which are used or to be used in or in connection with the
Electric Utility Business (as defined in the Indenture) (whether or not
such is the sole use of such property) the lien of the Indenture and
Permitted Liens (as defined in the Indenture);
(q) The Indenture constitutes a mortgage lien on the
properties specifically or generally described or referred to therein
as subject to the lien thereof (except such properties as may have been
sold, exchanged or otherwise disposed of or released from the lien
thereof in accordance with the terms thereof), subject to no liens
prior to the lien of the Indenture other than Permitted Liens and the
lien of the PSCO 1939 Mortgage; and the Indenture by its terms
effectively subjects to the lien thereof all property (except property
of the kinds specifically excepted from the lien of the Indenture)
acquired by the Company after the date of execution and delivery of the
Indenture and used or to be used in or in connection with the Electric
Utility Business, subject to Permitted Liens, the lien of the PSCO 1939
Mortgage, any lien thereon existing at the time of such acquisition and
to any liens for unpaid portions of the purchase money placed thereon
at the time of such acquisition, and also subject to the provisions of
Article Thirteen of the Indenture and to certain possible claims of a
trustee in bankruptcy and possible claims and taxes of the federal
government;
(r) The PSCO 1939 Mortgage constitutes a first mortgage
lien on the properties specifically or generally described or referred
to therein as subject to the lien thereof, including the shares of
stock pledged thereunder (except such property as may have been sold,
exchanged or otherwise disposed of or released from the lien thereof in
accordance with the terms thereof), subject to no liens prior to the
lien of the PSCO 1939 Mortgage other than "permitted encumbrances"; and
the PSCO 1939 Mortgage by its terms effectively subjects to the lien
thereof all property (except property of the kinds specifically
excepted from the lien of the PSCO 1939 Mortgage) acquired by the
Company after the date of the execution and delivery of the PSCO 1939
Mortgage, subject to "permitted encumbrances", to any lien thereon
existing at the time of such acquisition and to any liens for unpaid
portions of the purchase money placed thereon at the time of such
acquisition, and also subject to the provisions of Article XI of the
PSCO 1939 Mortgage and to certain possible claims of a trustee in
bankruptcy and possible claims and taxes of the federal government;
5
(s) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included or
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 GAAP throughout
the periods involved (except as otherwise noted therein); the selected
financial data set forth under the caption "Selected Consolidated
Financial Data" in the Prospectus fairly present, on the basis stated
in the Prospectus, the information included therein. Except as
disclosed in or incorporated by reference in the Registration Statement
and Prospectus, neither the Company nor any of its subsidiaries has any
contingent obligations which are material to the Company and its
consolidated subsidiaries taken as a whole;
(t) Deloitte & Touche LLP, which audited the financial
statements incorporated by reference in the Registration Statement and
Prospectus, (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;
(u) The statistical and market-related data and
forward-looking statements (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) included or incorporated by
reference in the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate in all material
respects and represent good faith estimates that are made on the basis
of data derived from such sources;
(v) Except as may otherwise be reflected in or
contemplated by the Registration Statement and Prospectus, since the
respective dates as of which information is given in the Registration
Statement and Prospectus (i) there has been no 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 and (ii) neither the Company nor any of its subsidiaries
has entered into any transactions which are material to the Company and
its subsidiaries taken as a whole, 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 taken as a
whole;
(w) 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 Registration Statement and Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to 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;
6
(x) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Registration Statement and Prospectus, all outstanding shares of
capital stock of the subsidiaries are owned by the Company either
directly or through wholly-owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances;
(y) The Company has no subsidiaries which would be deemed
significant subsidiaries under Regulation S-X;
(z) Neither the Company nor any of its subsidiaries is in
violation or default of (i) any provision of its charter or bylaws;
(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 it is a party or bound or to
which its 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 such subsidiary or any of its
properties, as applicable except, in the case of clause (ii) or (iii),
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;
(aa) The Company, either directly or through its parent,
has filed all foreign, federal, state and local tax returns that are
required to be filed or has requested extensions thereof (except in any
case in which the failure so to file would not 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, except as set forth in or contemplated in the Registration
Statement and Prospectus and has paid, either directly or through its
parent, all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent it has notice that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not 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, except as set forth in
or contemplated in the Registration Statement and Prospectus;
(bb) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all material policies of
insurance and fidelity or surety bonds insuring the Company or any of
its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its subsidiaries are in compliance with the terms of such material
policies and instruments in all material respects; and there are no
material claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither
the Company nor any such subsidiary has been refused any material
insurance coverage sought or applied for;
7
(cc) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Registration Statement and
Prospectus;
(dd) Neither the Company, nor any of its subsidiaries, nor
any director, officer, agent, employee or other person or entity acting
on behalf of the Company or any of its subsidiaries has, in the course
of its actions for, or on behalf of, the Company, used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic
government official or employee;
(ee) (A) The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act, "Disclosure Controls"); and such
Disclosure Controls are (i) designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is properly recorded, processed, summarized and
communicated to the Company's senior management, including its
principal executive officer and its principal financial officer, by
others within those entities as appropriate to allow timely decisions
regarding required disclosure, (ii) evaluated by the Company's senior
management on a quarterly basis and (iii) to the best knowledge of the
Company, effective in all material respects to perform the functions
for which they were established;
(B) The Company has designed and maintains
internal control over financial reporting (as such term is defined in
Rule 13a-15(f) under the Exchange Act, "Reporting Controls"); and the
Reporting Controls are (i) designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP and
include, without limitation, those processes specifically referred to
in Rule 13a-15(f) and (ii) to the best knowledge of the Company,
effective to perform the functions for which they are maintained;
(C) The Company has devised and maintains in
effect a system of internal accounting controls ("Accounting
Controls"); and such Accounting Controls are sufficient to provide
reasonable assurances that (i) transactions involving the Company and
its subsidiaries are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary
(I) to permit preparation of financial statements in conformity with
generally accepted accounting principles and (II) to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(D) Based on the most recent evaluation of the
Company's internal controls referred to above, all significant
deficiencies in the design or operation of such
8
internal controls which could adversely affect the Company's ability to
record, process, summarize and report financial data required to be
disclosed by the Company in its Exchange Act reports within the time
periods specified in the Exchange Act, any material weaknesses in such
internal controls and any fraud, whether or not material, that involves
management or other employees who have a significant role in such
internal controls have been identified and reported to the Company's
auditors and the audit committee of the board of directors; and all
such deficiencies and weaknesses, if any, have been rectified;
(ff) Except as set forth in, or incorporated by reference
in, the Registration Statement and Prospectus, 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 non-compliance 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
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;
(gg) With respect to each employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")) which the Company or any other
organization that together with the Company is treated as a single
employer under Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended (the "Code") (an "ERISA Affiliate"), has at
any time sponsored, maintained, contributed to or been obligated to
contribute to (a "Plan"): (i) the Company and each ERISA Affiliate have
administered and operated each Plan sponsored or maintained by the
Company or an ERISA Affiliate in compliance with ERISA, the Code and
other applicable laws except for such instances of noncompliance as
have not resulted in and could not reasonably be expected to result in
a material liability to the Company or ERISA Affiliate; (ii) each Plan
sponsored or maintained by the Company or an ERISA Affiliate intended
to qualify under Section 401(a) of the Code so qualifies and to the
Company's knowledge nothing has occurred, whether by action or failure
to act, which could reasonably be expected to cause the loss of such
qualification of any such Plan; (iii) neither the Company nor any ERISA
Affiliate has incurred, and to the Company's knowledge no event,
transaction or condition has occurred or exists under which the Company
or any ERISA Affiliate could reasonably expect to incur, any material
liability or the imposition of any lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate pursuant to
Title I or Title IV of ERISA (other than routine claims for benefits)
or applicable penalty or excise provisions of the Code; (iv) there has
been no reportable event (within the meaning of Section 4043 of ERISA)
with respect to any Plan subject to Title IV of ERISA that is sponsored
or maintained by the Company or an ERISA Affiliate for which the 30-day
reporting requirement has not been waived which could reasonably be
expected to result in a material liability under Title IV of ERISA to
the Company or an ERISA Affiliate; (v) no accumulated funding
deficiency (within the meaning of Section 302 of ERISA and Section
9
412 of the Code), whether or not waived, exists with respect to any
Plan subject to Title IV of ERISA that is sponsored or maintained by
the Company; and (vi) neither the Company nor any ERISA Affiliate has
incurred, and to the Company's knowledge no event, transaction or
condition has occurred or exists under which the Company or any ERISA
Affiliate could reasonably expect to incur, any material liability with
respect to termination of, or withdrawal from, any Plan subject to
Title IV of ERISA;
(hh) The franchises held by the Company and its
subsidiaries, together with the applicable Certificates of Convenience
and Necessity issued by The Public Utilities Commission of the State of
Colorado, give the Company and such subsidiaries all necessary
authority for the maintenance and operation of their respective
properties and business as now conducted, and are free from burdensome
restrictions or conditions of an unusual character.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Representatives in connection with the
offering of the Bonds shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
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 each Underwriter, severally and not jointly, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, (a)
at a purchase price of 99.280% of the principal amount thereof, plus accrued
interest, if any, from September 9, 2003 to the Closing Date, the principal
amount of 4.375% First Collateral Trust Bonds, Series No. 14 due 2008 set forth
opposite such Underwriter's name in Schedule I hereto and (b) at a purchase
price of 98.611% of the principal amount thereof, plus accrued interest, if any,
from September 9, 2003 to the Closing Date, the principal amount of 5.50% First
Collateral Trust Bonds, Series No. 15, due 2014 set forth opposite such
Underwriters name in Schedule 1 hereto.
It is understood that the several underwriters propose to offer the
Bonds for sale to the public as set forth in the Prospectus.
3. Delivery and Payment. Delivery of and payment for the Bonds
shall be made at 10:00 A.M., New York City time, on September 9, 2003, or at
such time on such later date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Bonds being herein called the "Closing Date"). Delivery of the
Bonds 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 wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Bonds shall be made through the facilities of The
Depository Trust Company.
4. Agreements. The Company agrees with each Underwriter:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the Closing Date which
shall be reasonably disapproved by the
10
Representatives promptly after reasonable notice thereof; during the
period for which a prospectus is required to be delivered under the Act
in connection with the offering and sale of the Bonds, to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required under the Act in connection
with the offering or sale of the Bonds; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus, of the suspension of the qualification of
the Bonds for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
to use its best efforts to prevent the issuance of any stop order or of
any order preventing or suspending the use of any prospectus or
suspending any such qualification, and, in the event of the issuance of
any such order, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Bonds for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Bonds, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the third
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus
is required under the Act at any time in connection with the offering
or sale of the Bonds and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their reasonable request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders
and to the Representatives as soon as practicable, but in any event not
later than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
11
statement of the Company and its subsidiaries (which need not be
audited) covering a period of at least 12 months beginning after the
later of (i) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of this Agreement and (ii) the date of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to
the date of this Agreement, which will satisfy the provisions of
Section 11(a) of the Act and the rules and regulations thereunder
including Rule 158;
(e) For a period of 14 days following the Execution Time,
without the prior written consent of the Representatives, not to offer,
sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company, directly or indirectly, or announce the offering of) any
long-term debt securities issued or guaranteed by the Company, other
than the Bonds and the bonds contemplated by any Shelf Registration
Statement or Exchange Offer Registration Statement (as such terms are
defined in the Registration Rights Agreement dated March 14, 2003,
between the Company and Banc One Capital Markets Inc. and UBS
Securities LLC, as representatives of the Initial Purchasers (as
identified therein));
(f) To use the net proceeds received by it from the sale
of the Bonds pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(g) To pay the costs and expenses relating to the
following matters: (i) the preparation of the Supplemental Indenture
the issuance of the Bonds and the fees of the Trustee; (ii) the
preparation, 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 and the printing and
furnishing of such copies of each thereof to the Underwriters and to
dealers (including postage, air freight charges and charges for
counting and packaging), as may be reasonably requested for use in
connection with the offering and sale of the Bonds; (iii) the
preparation, printing, authentication, issuance and delivery of
certificates for the Bonds, including any stamp or transfer taxes in
connection with the original issuance and sale of the Bonds; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Bonds;
(v) any registration or qualification of the Bonds for offer and sale
under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vi) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Bonds; (vii) the fees and expenses of the Company's
accountants and counsel (including local and special counsel); (viii)
the fees and expenses of any rating agencies rating the Bonds and (ix)
all other costs and expenses incident to the performance by the Company
of its obligations hereunder.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Bonds shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein at the Execution Time and the Closing Date,
12
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) (i) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) 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; (ii) 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 (iii) all
requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable
satisfaction;
(b) At the Closing Date, the Representatives shall have
received opinions, dated the Closing Date, of Ann E. Hopfenbeck,
Assistant General Counsel, Xcel Energy Services, Attorney for the
Company, Jones Day and LeBoeuf, Lamb, Greene and MacRae, LLP, counsel
for the Company, substantially to the effect set forth in Exhibit A
hereto and other related matters as the Representatives may reasonably
require, with reproduced or conformed copies thereof for each of the
Purchasers, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters;
(c) At the Closing Date, the Representatives shall have
received from Dewey Ballantine LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Bonds,
the Indenture, 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
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 Company, signed by the President
or any Vice President and the Treasurer of the Company, dated the
Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement and all amendments
thereto, the Prospectus and all amendments or supplements thereto and
this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects
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
hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included or incorporated by reference in the Prospectus,
there has been no 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, except as set
forth in or contemplated by the Prospectus.
(e) At the Execution Time and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to
furnish to the Representatives letters, dated
13
respectively as of the Execution Time and as of the Closing Date,
substantially to the effect set forth in Exhibit B hereto;
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Prospectus, there shall
not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 5; or (ii) any
change, or any development involving a prospective change, in or
affecting the financial condition, 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, except as set
forth in or contemplated in the Prospectus the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Bonds as contemplated by the
Prospectus.
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating or outlook of any of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any public announcement of any intended or potential decrease in any
such rating or outlook or of a possible change in any such rating or
outlook that does not indicate the direction of the possible change;
(h) The Company shall have complied with the provisions
of Section 4(c) hereof with respect to the furnishing of prospectuses.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, 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
facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of counsel for the Company, at Jones Day, on the Closing
Date.
6. Reimbursement of Expenses. If the sale of the Bonds provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to clause (i) of Section 9 hereof 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
on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Bonds.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, members, officers,
employees and agents of each
14
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 (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 or any amendment thereto, in any
preliminary prospectus or preliminary prospectus supplement or in the Prospectus
or any amendment 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, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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 in
the Registration Statement or any amendment thereto, in any preliminary
prospectus or preliminary prospectus supplement or in the Prospectus or any
amendment or supplement thereto, 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 inclusion therein; provided, further, that
with respect to any such untrue statement in or omission from any preliminary
prospectus, the indemnity contained in this paragraph (a) shall not inure to the
benefit of any Underwriter or its directors, members, officers, employees and
agents, and each person, if any, who controls such Underwriter to the extent
that the sale to the person asserting any such loss, claim, damage or liability
was an initial sale by such Underwriter and any such loss, claim, damage or
liability of or with respect to such Underwriter results from the fact that both
(i) to the extent required by applicable law, a copy of the Prospectus was not
sent or given to such person at or prior to the written confirmation of the sale
of the Bonds to such person and (ii) the untrue statement in or omission from
such preliminary prospectus was corrected in the Prospectus unless, in either
case, such failure to deliver the Prospectus was a result of non-compliance by
the Company with the provisions of Section 4(c) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have;
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, and each of its directors, officers,
employees and agents, and each person 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 each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the Prospectus or any amendment or supplement
thereto. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have. The Company acknowledges that the
statements set forth in (i) the last sentence of the cover page of the
Prospectus regarding the delivery of the Bonds, (ii) the third paragraph of text
under the caption "Underwriting" in the Prospectus, (iii) the first, second and
third sentences of the sixth paragraph of text under the caption "Underwriting"
in the Prospectus and (iv) the seventh and eighth paragraphs of text under the
caption "Underwriting" in the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Prospectus (or any amendment or supplement thereto);
(c) Promptly after receipt by an indemnified party under
this Section 7 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 7, notify the indemnifying party in writing of
15
the commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party 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; (iii) 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 the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party, it being understood, however, that in each case the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such indemnified parties,
which firm shall be designated by the Representatives if the indemnified parties
consist of the Underwriters or their directors, members, officers, employees or
agents. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding;
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms, the Company
and the Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively, "Losses") to
which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Underwriters on the other from the offering
of the Bonds; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among the Underwriters relating to the
offering of the Bonds) be responsible for any amount in excess of the purchase
discount or commission applicable to the Bonds purchased by such Underwriter
hereunder; provided, further, that each Underwriter's obligation to contribute
to Losses hereunder shall be several and not joint. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also
16
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions in each case set forth on the cover of
the Prospectus Supplement. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, member, officer, employee
and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act and each officer, director, member, employee
or agent of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d);
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Bonds agreed to be purchased by
such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Bonds set forth opposite their
names in Schedule I hereto bears to the aggregate amount of Bonds set forth
opposite the names of all the remaining Underwriters) the Bonds which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Bonds which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Bonds set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Bonds, and if such nondefaulting
Underwriters do not purchase all the Bonds, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, 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. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company or any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. 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
17
for the Bonds, if at any time after the date hereof and prior to the delivery of
and payment for the Bonds (i) trading in the common stock of Xcel Energy Inc.
shall have been suspended by the Commission or the New York Stock Exchange or
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) a banking moratorium shall have been declared either by Federal
or New York State authorities; (iii) there shall have occurred a material
disruption in commercial banking or securities settlement or clearance services
in the United States or Europe; or (iv) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
Bonds as contemplated by the Prospectus.
10. Indemnities to Survive. 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 the Underwriters or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Bonds. The provisions of Sections 6 and
7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Banc One Capital Markets, Inc., at fax no. (312)
732-4773, and confirmed to Banc One Capital Markets, Inc., 1 Bank One Plaza,
Suite IL1 0595, 8th Floor, Chicago, Illinois 60670, Attention: Structuring &
Execution, and to McDonald Investments Inc., 800 Superior Avenue, Cleveland,
Ohio 44114, and to UBS Securities LLC, at fax no. (203) 719-0495, and confirmed
to UBS Securities LLC, 677 Washington Blvd., Stamford, Connecticut 06901,
Attention: Fixed Income Syndicate; or, if sent to the Company, will be mailed,
delivered or telefaxed to Public Service Company of Colorado, 1225 17th Street,
Denver, Colorado 80202, Attention: Vice President and Treasurer (fax no.: (612)
215-5445) and confirmed to the General Counsel (fax no.: (612) 215-4501).
12. 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 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
15. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
18
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in the City of New York.
"Closing Date" shall have the meaning specified in Section 3 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"Mortgage Supplement" shall mean the Supplemental Indenture, dated as
of September 1, 2003, between the Company and U.S. Bank Trust National
Association, as trustee, supplemental to the PSCO 1939 Mortgage.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
17. Underwriters' Counsel. The Company and the Underwriters
acknowledge that Dewey Ballantine LLP (a) is acting as counsel to the
Underwriters in connection with this Agreement and the transactions contemplated
hereby and (b) has acted, and may continue to act, as counsel to the Company's
parent company, Xcel Energy Inc., and certain of its subsidiaries in connection
with certain regulatory matters, and the Company and the Underwriters consent to
such representation.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Underwriters.
Very truly yours,
PUBLIC SERVICE COMPANY OF
COLORADO
By: /s/ Benjamin G. S. Fowke III
-----------------------------
Name: Benjamin G. S. Fowke III
Title: Vice President and Treasurer
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
BANC ONE CAPITAL MARKETS, INC.
MCDONALD INVESTMENTS INC.
UBS SECURITIES LLC
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
By: UBS SECURITIES LLC
By: /s/ Christopher Forshner
----------------------------
Name: Christopher Forshner
Title: Executive Director
By: /s/ Scott Whitney
----------------------------
Name: Scott Whitney
Title: Director
SCHEDULE I
Principal Amount Principal Amount
of 4.375% First of 5.50% First
Collateral Trust Collateral Trust
Bonds due 2008 Bonds due 2014
Underwriters to be Purchased to be Purchased
------------ ---------------- ----------------
Banc One Capital Markets, Inc.................................................. $ 80,000,000 $ 73,333,334
McDonald Investments Inc. $ 80,000,000 $ 73,333,333
UBS Securities LLC ............................................................ $ 80,000,000 $ 73,333,333
U.S. Bancorp Piper Jaffray Inc................................................. $ 24,000,000 $ 22,000,000
Wells Fargo Brokerage Services, LLC............................................ $ 24,000,000 $ 22,000,000
Citigroup Global Markets, Inc. ................................................ $ 12,000,000 $ 11,000,000
---------------- ----------------
Total........................................................ $ 300,000,000 $ 275,000,000
EXHIBIT A-1
FORM OF OPINION OF ANN E. HOPFENBECK
Ladies and 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 $
300,000,000 principal amount of 4.375% First Collateral Trust Bonds, Series No.
14 due 2008 and $ 275,000,000 principal amount of 5.50% First Collateral Trust
Bonds, Series No. 15 due 2014 (collectively, the "Bonds"). In connection
therewith I have participated in the preparation of the proceedings for the
issuance and sale of the Bonds including the Underwriting Agreement dated
September 2, 2003, between you and the Company relating to your purchase of the
Bonds (the "Agreement"), and have either participated in the preparation of or
examined the Trust Indenture dated October 1, 1993, from the Company to U.S.
Bank Trust National Association, as successor trustee (the "Trustee"), as
heretofore supplemented and as it will be further supplemented by Supplemental
Indenture No. 15 creating the Bonds (said indenture, as so supplemented and to
be further supplemented, being hereafter referred to as the "Indenture") and the
PSCo 1939 Mortgage (as defined in the Indenture). This letter is furnished to
the Underwriters pursuant to Section 5(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 amendments or supplements thereto, as filed
under the Act, with respect to the Bonds. 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, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Agreement;
2. The Agreement has been duly authorized, executed and
delivered by the Company;
3. The issuance and sale of the Bonds, and the issuance
and delivery of the Class A Bonds, have been duly authorized and
approved by an order of The Public Utilities Commission of the State of
Colorado and such order is final and in full force and effect on the
date hereof, the time for appeal therefrom or review thereof or
intervention with respect thereto having expired; no further approval,
authorization, consent or other order of any public board or body in
the State of Colorado is legally required in connection with the
transactions contemplated by the Agreement, the Indenture or the PSCo
1939 Mortgage, except as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Bonds by the Underwriters in the manner contemplated by the Agreement
and in the Prospectus;
A-1-1
4. Neither the execution and delivery of the Agreement,
the issue and sale of the Bonds, nor the consummation of any other of
the transactions 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, other than the
security interest created by the Bonds, the Indenture and the PSCo 1939
Mortgage, under (i) the Restated Articles of Incorporation, as amended,
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, 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;
5. The facsimile signature of a Senior Vice President or
Vice President of the Company in lieu of his manual signature on the
Bonds and the Class A Bonds and the facsimile signature of the
Secretary or an Assistant Secretary of the Company attesting the
corporate seal in lieu of his manual signature on the Bonds and the
Class A Bonds have been duly and properly authorized by the Board of
Directors of the Company, are not inconsistent with the provisions of
the Restated Articles of Incorporation, as amended, or By-Laws of the
Company and are valid and effective under the laws of the State of
Colorado; and the facsimile signatures of such officers on the Bonds
and the Class A Bonds have the same legal effect as though they had
manually signed and attested the Bonds and the Class A Bonds as such
respective officers;
6. The descriptions in the Registration Statement and
Prospectus of Colorado state statutes and legal and governmental
proceedings are accurate in all material respects; to the best of my
knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments that would be
required to be described in the documents incorporated by reference in
the Prospects that are not described or referred to in such
incorporated documents, and the descriptions thereof or references
thereto are correct in all material respects;
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 or
examination of the Registration Statement and any amendments thereto and the
Prospectus and any amendments or supplements thereto
A-1-2
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 Registration Statement or 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 Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, not misleading, or that the Prospectus, at
the time it was filed with the Commission pursuant to Rule 424(b) under the Act
and 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 opinion of even date herewith to the
Underwriters, Dewey Ballantine LLP are 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.
A-1-3
EXHIBIT A-2
FORM OF OPINION OF JONES DAY
Ladies and Gentlemen:
We have acted as special 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 as of September 2,
2003 (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 $300,000,000 aggregate principal
amount of 4.375% First Collateral Trust Bonds, Series 14 due 2008, and
$275,000,000 aggregate principal amount of 5.50% First Collateral Trust Bonds,
Series 15 due 2014 of the Company (collectively, the "Bonds") being issued on
this date under the Company's Indenture, dated as of October 1, 1993, to U.S.
Bank Trust National Association, as successor trustee (the "Trustee"), as
heretofore supplemented and as it is being further supplemented by a
supplemental indenture creating the Bonds (said Indenture, as so supplemented,
being hereafter referred to as the "Indenture"). This letter is furnished to the
Underwriters pursuant to Section 5(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. Assuming that the Agreement has been duly (a)
authorized by the Company and (b) executed and delivered by the Company
under Colorado law, the Agreement has been duly executed and delivered
by the Company to the extent such execution and delivery are questions
of New York law.
2. The Company is not, and after giving effect to the
offering and sale of the Bonds 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.
3. Assuming that the issuance and sale of the Bonds, and
the issuance and delivery of the Class A Bonds, have been duly
authorized and approved by an order of The Public Utilities Commission
of the State of Colorado and such order is final and in full force and
effect on the date hereof, 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
under the laws of the United States of America is legally required in
connection with the transactions contemplated by the Agreement, the
Indenture or the PSCo 1939 Mortgage, except those that already have
been obtained and are in full force and effect.
A-2-1
4. The Registration Statement has been declared
effective by the Commission under the Act, the Prospectus has been
filed with the Commission pursuant to Rule 424(b) under the Act in the
manner and within the time period required by Rule 424(b) under the
Act; and no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and, to the best of our
knowledge, no proceedings for that purpose have been instituted or are
pending or are threatened by the Commission;
5. Except as to the financial statements or other
financial or statistical data included or incorporated by reference
therein, as to which we express no opinion, the Registration Statement,
at the time it became effective, and the Prospectus, at the time it was
filed with the Commission pursuant to Rule 424(b), complied as to form
in all material respects with the applicable requirements of the Act
and the Trust Indenture Act.
6. Except as to the financial statements or other
financial or statistical data included or incorporated by reference
therein, as to which we express no opinion, the documents incorporated
by reference in the Prospectus, when they were filed with the
Commission, compiled as to form in all material respects with the
applicable requirements of the Exchange Act.
7. The descriptions in the Registration Statement and
the 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 paragraph 8 above, of the
information included in the Registration Statement or Prospectus. We have
participated in the preparation of the Registration Statement and 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, nothing has come to our attention that would lead
us to believe that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, not misleading, or that the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424(b) under the Act and 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 (except
that we express no view as to the financial statements, financial schedules and
other financial data included or incorporated by reference in the Prospectus).
The opinions and views set forth above are subject to the
following assumptions, qualifications and limitations:
We have assumed, for purposes of the opinions and views
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
A-2-2
such documents is the valid, binding and enforceable obligation of each of the
Underwriters and the Trustee, respectively.
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 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 Bonds 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,
A-2-3
EXHIBIT A-3
FORM OF OPINION OF LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
Ladies and Gentlemen:
We have acted as counsel to Public Service Company of Colorado
(the "Company"), with respect to matters relating to the Indenture dated as of
December 31, 1939 (the "1939 PSCo Mortgage") between the Company and U.S. Bank
Trust National Association (formerly First Trust of New York, National
Association), as successor trustee (the "1939 Trustee"), and the Indenture dated
as of October 1, 1993, as amended and supplemented (the "Indenture"), between
the Company and U.S. Bank Trust National Association (formerly First Trust of
New York, National Association), as successor trustee (the "Trustee") in
connection with the sale by the Company of $300,000,000 aggregate principal
amount of its First Collateral Trust Bonds, Series No. 14 due 2008 and
$275,000,000 aggregate principal amount of its First Collateral Trust Bonds,
Series No. 15 due 2014 (collectively, the "Bonds") on the basis of an equivalent
amount of Class A Bonds (as defined in the Indenture). This opinion is being
delivered pursuant to Section 5(b) of the Underwriting Agreement, dated
September 2, 2003 (the "Agreement"), between the Company and you as
representatives of the Underwriters (the "Representatives"). Unless otherwise
stated, defined terms used herein shall have the respective meanings given to
them in the Agreement.
We are not general counsel to the Company and our
representation of the Company consists of advising it with respect to corporate
and regulatory matters as to which we have been specifically consulted. We are
familiar with the legal matters pertaining to, and the corporate proceedings of
the Company taken with respect to, the authorization and the issuance and sale
by the Company of the Bonds and the authorization and the issuance and delivery
by the Company of the Class A Bonds. We have examined, among other things, the
Registration Statement and Prospectus and any amendment and supplement thereto,
the corporate records of the Company, the Indenture (including the Supplemental
Indenture creating the Bonds), the PSCo 1939 Mortgage (including the
supplemental indenture thereto under which the Class A Bonds are being issued),
and such other proceedings, papers and documents as we have deemed relevant for
the purposes of rendering the opinions enumerated below. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as copies and the authenticity of all such
latter documents. We have relied as to various questions of fact upon
discussions with officers and representatives of the Company and the
representations and warranties of the Company contained in the Agreement and
upon the certificates of public officials and of officers of the Company being
delivered to you thereunder. With respect to the opinions expressed in
paragraphs 5, 6 and 7 below, we have relied upon information obtained from
public records and from the Company.
On the basis of and subject to the foregoing, and subject to
the further limitations and qualifications set forth below, it is our opinion
that:
1. The Indenture has been duly and validly authorized,
executed and delivered by the Company and is in due and proper form and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and binding
A-2-1
mortgage of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, moratorium, fraudulent conveyance
and transfer, and other similar laws affecting the rights of mortgagees
and creditors generally, state laws which affect the enforcement of
certain remedial provisions of the Indenture, and general principles of
equity (regardless of whether such principles are considered in a
proceeding at law or in equity); provided, however, that such state
laws which affect the enforcement of certain remedial provisions of the
Indenture will not, in our opinion, render the remedies afforded by the
Indenture inadequate for the practical realization of the benefit of
the security provided thereby;
2. The Bonds are in due and proper form and the issuance
and sale of the Bonds have been duly authorized by all necessary
corporate action, and when duly executed, authenticated and delivered
to the Underwriters pursuant to the Agreement against payment of the
consideration set forth therein, the Bonds will be legal, valid and
binding obligations of the Company enforceable (subject to the
exceptions and limitations referred to in paragraph 1 hereof) in
accordance with their terms and entitled to the benefits and security
of the Indenture; and the Bonds will be secured equally and ratably
with all other bonds outstanding under the Indenture;
3. The PSCo 1939 Mortgage has been duly and validly
authorized, executed and delivered by the Company and is in due and
proper form and (assuming the PSCo 1939 Mortgage has been duly
authorized, executed and delivered by the 1939 Trustee) constitutes a
legal, valid and binding mortgage of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
moratorium, fraudulent conveyance and transfer, and other similar laws
affecting the rights of mortgagees and creditors generally, state laws
which affect the enforcement of certain remedial provisions of the PSCo
1939 Mortgage and general principles of equity (regardless of whether
such principles are considered in a proceeding at law or in equity);
provided, however, that such state laws which affect the enforcement of
certain remedial provisions of the Indenture will not, in our opinion,
render the remedies afforded by the PSCo 1939 Mortgage inadequate for
the practical realization of the benefit of the security provided
thereby;
4. The Class A Bonds are in due and proper form and the
issuance and delivery of the Class A Bonds have been duly authorized by
all necessary corporate action; and when (a) the Class A Bonds have
been duly executed, authenticated and delivered to the Trustee pursuant
to the PSCo 1939 Mortgage and (b) the Bonds have been duly executed,
authenticated and delivered to the Underwriters pursuant to the
Agreement against payment of the consideration set forth therein, the
Class A Bonds will be legal, valid and binding obligations of the
Company enforceable (subject to the exceptions and limitations referred
to in paragraph 3 hereof) in accordance with their terms and entitled
to the benefits and security of the PSCo 1939 Mortgage; and the Class A
Bonds will be secured equally and ratably with all other bonds
outstanding under the PSCo 1939 Mortgage (except to the extent that any
sinking, amortization, improvement or other fund may afford additional
security for such bonds of any particular series);
5. The Company has good title to the real properties
specifically or generally described or referred to in the Indenture and
in the PSCo 1939 Mortgage as subject to the respective liens thereof
(except such real property as may have been sold, exchanged or
otherwise disposed of), subject only to (a) in the case of all such
properties, the lien of the PSCo 1939 Mortgage and "permitted
encumbrances" (as defined in the PSCo 1939 Mortgage) and (b)
A-2-2
in the case of such properties which are used or to be used in or in
connection with the Electric Utility Business (as defined in the
Indenture) (whether or not such use is the sole use of such property),
the lien of the Indenture and Permitted Liens (as defined in the
Indenture);
6. The Indenture and the filings and recordations made
in connection therewith constitute a mortgage lien on the properties
specifically or generally described or referred to therein as subject
to the lien thereof (except such properties as may have been sold,
exchanged or otherwise disposed of or released from the lien thereof in
accordance with the terms thereof), subject to no liens prior to the
lien of the Indenture other than Permitted Liens and the lien of the
PSCo 1939 Mortgage; and the Indenture by its terms effectively subjects
to the lien thereof all property (except property of the kinds
specifically excepted from the lien of the Indenture by the terms
thereof) acquired by the Company after the date of execution and
delivery of the Indenture and used or to be used in or in connection
with the Electric Utility Business, subject to Permitted Liens, the
lien of the PSCo 1939 Mortgage, any lien thereon existing at the time
of such acquisition and to any liens for unpaid portions of the
purchase money placed thereon at the time of such acquisition, and also
subject to the provisions of Article Thirteen of the Indenture and to
certain possible claims of a trustee in bankruptcy and possible claims
and taxes of the federal government;
7. The PSCo 1939 Mortgage and the filings and
recordations made in connection therewith constitute a first mortgage
lien on the properties specifically or generally described or referred
to therein as subject to the lien thereof (except such property as may
have been sold, exchanged or otherwise disposed of or released from the
lien thereof in accordance with the terms thereof), and, with respect
to the shares of stock pledged thereunder, the PSCo 1939 Mortgage and
the possession by the Trustee of such stock and appropriate stock
powers in the State of New York pursuant to the PSCo 1939 Mortgage is
sufficient to create a security interest under Article 9 of the Uniform
Commercial Code as in effect in the State of New York with respect to
such stock (except such stock as may have been sold, exchanged or
otherwise disposed of or released from the lien thereof in accordance
with the terms thereof), subject to no liens or security interests
prior to the lien and security interest created by the PSCo 1939
Mortgage other than "permitted encumbrances"; and the PSCo 1939
Mortgage by its terms effectively subjects to the lien or security
interest thereof all property (except property of the kinds
specifically excepted from the lien of the PSCo 1939 Mortgage by the
terms thereof) acquired by the Company after the date of execution and
delivery of the PSCo 1939 Mortgage, subject to "permitted
encumbrances", to any lien thereon existing at the time of such
acquisition and to any liens for unpaid portions of the purchase money
placed thereon at the time of acquisition and also subject to the
provisions of Article XI of the PSCo 1939 Mortgage and to certain
possible claims of a trustee in bankruptcy and possible claims and
taxes of the federal government; and
8. The Bonds, the Indenture, the Class A Bonds, and the
PSCo 1939 Mortgage conform as to legal matters to the descriptions of
the terms thereof contained in the Prospectus under the captions
"Supplemental Description of the First Collateral Trust Bonds,"
"Description of the First Collateral Trust Bonds" and "Description of
the 1939 Mortgage".
This opinion is limited to the laws of the State of New York
and the State of Colorado and the federal law of the United States of America.
This opinion speaks as of the date hereof and we undertake no responsibility to
advise you of any change in circumstances after the date hereof.
A-2-3
Dewey Ballantine LLP is hereby authorized to rely upon
paragraphs 1, 2, 3, 4 and 8 of this letter as to matters governed by the law of
the State of Colorado as if this letter, solely with respect to aforementioned
paragraphs, were addressed to them.
This letter is not being delivered for the benefit of, nor may
it be relied upon by, the holders of the Bonds or any other party to which it is
not specifically addressed or to which reliance has not expressly been permitted
hereby. This letter may be relied upon only by the addressees hereof in
connection with the issuance and sale of the Bonds and may not be relied upon
for any other purpose.
Very truly yours,
A-2-4
EXHIBIT B
FORM OF LETTER OF DELOITTE & TOUCHE LLP
A-3-1