PUBLIC SERVICE COMPANY
OF COLORADO
TO
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
-----------------------
SUPPLEMENTAL INDENTURE NO. 15
Dated as of September 1, 2003
Supplemental to the Indenture
dated as of October 1, 1993
-----------------------
Establishing the Securities of Series No. 14 and Series No. 15,
designated First Collateral Trust Bonds, Series No. 14 and
First Collateral Trust Bonds, Series No. 15, respectively
SUPPLEMENTAL INDENTURE NO. 15, dated as of September 1, 2003, between
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and existing
under the laws of the State of Colorado (hereinafter sometimes called the
"Company"), and U.S. BANK TRUST NATIONAL ASSOCIATION (FORMERLY FIRST TRUST OF
NEW YORK, NATIONAL ASSOCIATION), a national banking association, as successor
trustee (hereinafter sometimes called the "Trustee") to Morgan Guaranty Trust
Company of New York under the Indenture, dated as of October 1, 1993
(hereinafter called the "Original Indenture"), as previously supplemented and as
further supplemented by this Supplemental Indenture No. 15. The Original
Indenture and any and all indentures and all other instruments supplemental
thereto are hereinafter sometimes collectively called the "Indenture".
RECITALS OF THE COMPANY
The Original Indenture was authorized, executed and delivered by the
Company to provide for the issuance from time to time of its Securities (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as contemplated therein, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Securities.
The Company has heretofore executed and delivered to the Trustee the
Supplemental Indentures referred to in Schedule A hereto for the purpose of
establishing a series of bonds and appointing the successor Trustee.
The Company desires to establish two new series of Securities to be
designated "First Collateral Trust Bonds, Series No. 14" and "First Collateral
Trust Bonds, Series No. 15", such series of Securities to be hereinafter
sometimes called "Series No. 14" and "Series No. 15," respectively.
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. 15 to establish the Securities of Series No. 14 and
Series No. 15 and has duly authorized the issuance of such Securities; and all
acts necessary to make this Supplemental Indenture No. 15 a valid agreement of
the Company, and to make the Securities of Series No. 14 and Series No. 15 valid
obligations of the Company, have been performed.
GRANTING CLAUSES
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 15 WITNESSETH, that, in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, and in order to secure the payment of the principal of and
premium, if any, and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants contained therein and in the
Indenture and to declare the terms and conditions on which such Securities are
secured, the Company hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms to the Trustee, and grants
to the Trustee a security interest in, the following:
GRANTING CLAUSE FIRST
All right, title and interest of the Company, as of the date
of the execution and delivery of this Supplemental Indenture No. 15, in
and to property (other than Excepted Property), real, personal and
mixed and wherever situated, in any case used or to be used in or in
connection with the Electric Utility Business (whether or not such use
is the sole use of such property), including without limitation (a) all
lands, easements, servitudes, licenses, permits, rights of way and
other rights and interests in or relating to real property used or to
be used in or in connection with the Electric Utility Business or
relating to the occupancy or use of such real property, subject
however, to the exceptions
and exclusions set forth in clause (a) of Granting Clause First of the
Original Indenture; (b) all plants, generators, turbines, engines,
boilers, fuel handling and transportation facilities, air and water
pollution control and sewage and solid waste disposal facilities and
other machinery and facilities for the generation of electric energy;
(c) all switchyards, lines, towers, substations, transformers and other
machinery and facilities for the transmission of electric energy; (d)
all lines, poles, conduits, conductors, meters, regulators and other
machinery and facilities for the distribution of electric energy; (e)
all buildings, offices, warehouses and other structures used or to be
used in or in connection with the Electric Utility Business; (f) all
pipes, cables, insulators, ducts, tools, computers and other data
processing and/or storage equipment and other equipment, apparatus and
facilities used or to be used in or in connection with the Electric
Utility Business; (g) any or all of the foregoing properties in the
process of construction; and (h) all other property, of whatever kind
and nature, ancillary to or otherwise used or to be used in conjunction
with any or all of the foregoing or otherwise, directly or indirectly,
in furtherance of the Electric Utility Business;
GRANTING CLAUSE SECOND
Subject to the applicable exceptions permitted by Section
810(c), Section 1303 and Section 1305 of the Original Indenture, all
property (other than Excepted Property) of the kind and nature
described in Granting Clause First which may be hereafter acquired by
the Company, it being the intention of the Company that all such
property acquired by the Company after the date of the execution and
delivery of this Supplemental Indenture No. 15 shall be as fully
embraced within and subjected to the Lien hereof as if such property
were owned by the Company as of the date of the execution and delivery
of this Supplemental Indenture No. 15;
GRANTING CLAUSE FOURTH
All other property of whatever kind and nature subjected or
required to be subjected to the Lien of the Indenture by any of the
provisions thereof;
EXCEPTED PROPERTY
Expressly excepting and excluding, however, from the Lien and
operation of the Indenture all Excepted Property of the Company,
whether now owned or hereafter acquired;
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto
the Trustee, its successors in trust and their assigns forever;
SUBJECT, HOWEVER, to (a) Liens existing at the date of the execution
and delivery of the Original Indenture (including, but not limited to, the Lien
of the PSCO 1939 Mortgage), (b) as to property acquired by the Company after the
date of the execution and delivery of the Original Indenture, Liens existing or
placed thereon at the time of the acquisition thereof (including, but not
limited to, the Lien of any Class A Mortgage and purchase money Liens), (c)
Retained Interests and (d) any other Permitted Liens, it being understood that,
with respect to any property which was at the date of execution and delivery of
the Original Indenture or thereafter became or hereafter becomes subject to the
Lien of any Class A Mortgage, the Lien of the Indenture shall at all times be
junior, subject and subordinate to the Lien of such Class A Mortgage;
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IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Securities without
any priority of any such Security over any other such Security;
PROVIDED, HOWEVER, that the right, title and interest of the Trustee in
and to the Mortgaged Property shall cease, terminate and become void in
accordance with, and subject to the conditions set forth in, Article Nine of the
Original Indenture, and if, thereafter, the principal of and premium, if any,
and interest, if any, on the Securities shall have been paid to the Holders
thereof, or shall have been paid to the Company pursuant to Section 603 of the
Original Indenture, then and in that case the Indenture shall terminate, and the
Trustee shall execute and deliver to the Company such instruments as the Company
shall require to evidence such termination; otherwise the Indenture, and the
estate and rights thereby granted shall be and remain in full force and effect;
and
THE PARTIES HEREBY FURTHER COVENANT AND AGREE as follows:
ARTICLE ONE
SECURITIES OF SERIES NO. 14
There are hereby established the Securities of Series No. 14, which
shall have the terms and characteristics set forth below (the lettered
subdivisions set forth below corresponding to the lettered subdivisions of
Section 301 of the Original Indenture):
(a) the title of the Securities of Series No. 14 shall be "First
Collateral Trust Bonds, Series No. 14"; provided, however, that, at any
time after the PSCO 1939 Mortgage shall have been satisfied and
discharged, the Company shall have the right, without any consent or
other action by the Holders of the Securities, to change the title of
the series in such manner as shall be deemed by the Company to be
appropriate to reflect such satisfaction and discharge, such change to
be evidenced in an Officer's Certificate;
(b) the Securities of Series No. 14 shall be initially
authenticated and delivered in the aggregate principal amount of
$300,000,000;
(c) interest on the Securities of Series No. 14 shall be payable
to the Persons in whose names such Securities are registered at the
close of business on the Regular Record Date for such interest, except
as otherwise expressly provided in the form of such Securities attached
as Exhibit A hereto;
(d) the principal of the Securities of Series No. 14 shall be
payable on October 1, 2008, the Stated Maturity for Series No. 14;
(e) the Securities of Series No. 14 shall bear interest at a rate
of 4.375% per annum; interest shall accrue on the Securities of Series
No. 14 from September 9, 2003, or the most recent date to which
interest has been paid or duly provided for; the Interest Payment Dates
for such Securities shall be April 1 and October 1 in each year,
commencing April 1, 2004, and the Regular Record Dates with respect to
the Interest Payment Dates for such Securities shall be March 15 and
September 15 in each year, respectively (whether or not a Business
Day);
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(f) the Corporate Trust Office of U.S. Bank Trust National
Association in New York, New York shall be the place at which (i) the
principal of, premium, if any, and interest, if any, on the Securities
of Series No. 14 shall be payable, (ii) registration of transfer of
such Securities may be effected, (iii) exchanges of such Securities may
be effected and (iv) notices and demands to or upon the Company in
respect of such Securities and the Indenture may be served; and U.S.
Bank Trust National Association shall be the Security Registrar for
such Securities; provided, however, that the Company reserves the right
to change, by one or more Officer's Certificates, any such place or the
Security Registrar; and provided, further, that the Company reserves
the right to designate, by one or more Officer's Certificates, its
principal office in Denver, Colorado as any such place or itself as the
Security Registrar;
(g) the Securities of Series No. 14 shall be redeemable at the
option of the Company at any time prior to their Maturity, in whole or
in part, at a redemption price equal to the greater of (i) 100% of the
principal amount thereof to be redeemed, or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on
such Securities to be redeemed, discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 15 basis points, plus in each case,
accrued and unpaid interest to the Redemption Date. For purposes
hereof, the following defined terms shall have the meaning ascribed to
them:
"Treasury Yield" means, for any Redemption Date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities of Series
No. 14 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of the Securities of Series No. 14.
"Comparable Treasury Price" means, for any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding the Redemption Date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if that release
(or any successor release) is not published or does not contain those
prices on that Business Day, (A) the average of the Reference Treasury
Dealer Quotations for the Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations for the Redemption
Date, or (B) if the Trustee obtains fewer than four Reference Treasury
Dealer Quotations, the average of all of the Quotations.
"Independent Investment Banker" means Banc One Capital
Markets, Inc., or its successor or, if such firm or its successor is
unwilling or unable to select the Comparable Treasury Issue, one of the
remaining Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital
Markets, Inc., McDonald Investments Inc. or UBS Securities LLC and any
other Primary Treasury Dealer
4
designated by, and not affiliated with, Banc One Capital Markets, Inc.,
McDonald Investments Inc. or UBS Securities LLC and their respective
successors, provided, however, that if any of the foregoing or any of
its designees ceases to be a Primary Treasury Dealer, the Company will
appoint another Primary Treasury Dealer as a substitute and (ii) any
other Primary Treasury Dealer selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government
securities dealer in the United States.
"Reference Treasury Dealer Quotations" means, for each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker by the Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding the Redemption Date.
(h) not applicable;
(i) not applicable;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) not applicable;
(o) not applicable;
(p) not applicable;
(q) the Securities of Series No. 14 are to be initially registered
in the name of Cede & Co., as nominee for The Depository Trust Company
(the "Depositary"). Such Securities shall not be transferable or
exchangeable, nor shall any purported transfer be registered, except as
follows:
(i) such Securities may be transferred in whole, and
appropriate registration of transfer effected, if such
transfer is by such nominee to the Depositary, or by the
Depositary to another nominee thereof, or by any nominee of
the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor securities
depositary or any nominee thereof; and
(ii) such Securities may be exchanged for definitive
Securities registered in the respective names of the
beneficial holders thereof, and thereafter shall be
transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Trustee that it is unwilling or unable to continue to
act as securities depositary with respect to such
Securities or the Depositary has ceased to be a
clearing agency registered under the
5
Securities Exchange Act of 1934, as amended, and the
Trustee shall not have been notified by the Company
within ninety (90) days of the identity of a
successor securities depositary with respect to such
Securities; or
(B) the Company shall have delivered to the
Trustee a Company Order to the effect that such
Securities shall be so exchangeable on and after a
date specified therein;
(r) not applicable;
(s) no service charge shall be made for the registration of
transfer or exchange of the Securities of Series No. 14; provided,
however, that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with
the exchange or transfer;
(t) not applicable;
(u) (i) If the Company shall have caused the Company's
indebtedness in respect of any Securities of Series No. 14 to
have been satisfied and discharged prior to the Maturity of
such Securities, as provided in Section 901 of the Original
Indenture, the Company shall, promptly after the date of such
satisfaction and discharge, give a notice to each Person who
was a Holder of any of such Securities on such date stating
(A)(1) the aggregate principal amount of such Securities and
(2) the aggregate amount of any money (other than amounts, if
any, deposited in respect of accrued interest on such
Securities) and the aggregate principal amount of, the rate or
rates of interest on, and the aggregate fair market value of,
any Eligible Obligations deposited pursuant to Section 901 of
the Original Indenture with respect to such Securities and (B)
that the Company will provide (and the Company shall promptly
so provide) to such Person, or any beneficial owner of such
Securities holding through such Person (upon written request
to the Company sent to an address specified in such notice),
such other information as such Person or beneficial owner, as
the case may be, reasonably may request in order to enable it
to determine the federal income tax consequences to it
resulting from the satisfaction and discharge of the Company's
indebtedness in respect of such Securities. Thereafter, the
Company shall, within forty-five (45) days after the end of
each calendar year, give to each Person who at any time during
such calendar year was a Holder of such Securities a notice
containing (X) such information as may be necessary to enable
such Person to report its income, gain or loss for federal
income tax purposes with respect to such Securities or the
assets held on deposit in respect thereof during such calendar
year or the portion thereof during which such Person was a
Holder of such Securities, as the case may be (such
information to be set forth for such calendar year as a whole
and for each month during such year) and (Y) a statement to
the effect that the Company will provide (and the Company
shall promptly so provide) to such Person, or any beneficial
owner of such Securities holding through such Person (upon
written request to the Company sent to an address specified in
such notice), such other information as such Person or
beneficial owner, as the case may be, reasonably may request
in order to enable it to determine its income, gain or loss
for federal income tax purposes with respect to such
Securities or such assets for such year or portion
6
thereof, as the case may be. The obligation of the Company to
provide or cause to be provided information for purposes of
income tax reporting by any Person as described in the first
two sentences of this paragraph shall be deemed to have been
satisfied to the extent that the Company has provided or
caused to be provided substantially comparable information
pursuant to any requirements of the Internal Revenue Code of
1986, as amended from time to time (the "Code") and United
States Treasury regulations thereunder.
(ii) Notwithstanding the provisions of subparagraph (i)
above, the Company shall not be required to give any notice
specified in such subparagraph or to otherwise furnish any of
the information contemplated therein if the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize income,
gain or loss for federal income tax purposes as a result of
the satisfaction and discharge of the Company's indebtedness
in respect of such Securities and such Holders will be subject
to federal income taxation on the same amounts and in the same
manner and at the same times as if such satisfaction and
discharge had not occurred.
(iii) Anything in this clause (u) to the contrary
notwithstanding, the Company shall not be required to give any
notice specified in subparagraph (i) or to otherwise furnish
the information contemplated therein or to deliver any Opinion
of Counsel contemplated by subparagraph (ii) if the Company
shall have caused Securities of Series No. 14 to be deemed to
have been paid for purposes of the Indenture, as provided in
Section 901 of the Original Indenture, but shall not have
effected the satisfaction and discharge of its indebtedness in
respect of such Securities pursuant to such Section.
(v) The Securities of Series No. 14 shall be substantially in the
form attached hereto as Exhibit A and shall have such further terms as
are set forth in such form.
ARTICLE TWO
SECURITIES OF SERIES NO. 15
There are hereby established the Securities of Series No. 15, which
shall have the terms and characteristics set forth below (the lettered
subdivisions set forth below corresponding to the lettered subdivisions of
Section 301 of the Original Indenture):
(a) the title of the Securities of Series No. 15 shall be "First
Collateral Trust Bonds, Series No. 15"; provided, however, that, at any
time after the PSCO 1939 Mortgage shall have been satisfied and
discharged, the Company shall have the right, without any consent or
other action by the Holders of the Securities, to change the title of
the series in such manner as shall be deemed by the Company to be
appropriate to reflect such satisfaction and discharge, such change to
be evidenced in an Officer's Certificate;
(b) the Securities of Series No. 15 shall be initially
authenticated and delivered in the aggregate principal amount of
$275,000,000;
(c) interest on the Securities of Series No. 15 shall be payable
to the Persons in whose names such Securities are registered at the
close of business on the Regular
7
Record Date for such interest, except as otherwise expressly provided
in the form of such Securities attached as Exhibit B hereto;
(d) the principal of the Securities of Series No. 15 shall be
payable on April 1, 2014, the Stated Maturity for Series No. 15;
(e) the Securities of Series No. 15 shall bear interest at a rate
of 5.50% per annum; interest shall accrue on the Securities of Series
No. 15 from September 9, 2003, or the most recent date to which
interest has been paid or duly provided for; the Interest Payment Dates
for such Securities shall be April 1 and October 1 in each year,
commencing April 1, 2004, and the Regular Record Dates with respect to
the Interest Payment Dates for such Securities shall be March 15 and
September 15 in each year, respectively (whether or not a Business
Day);
(f) the Corporate Trust Office of U.S. Bank Trust National
Association in New York, New York shall be the place at which (i) the
principal of, premium, if any, and interest, if any, on the Securities
of Series No. 15 shall be payable, (ii) registration of transfer of
such Securities may be effected, (iii) exchanges of such Securities may
be effected and (iv) notices and demands to or upon the Company in
respect of such Securities and the Indenture may be served; and U.S.
Bank Trust National Association shall be the Security Registrar for
such Securities; provided, however, that the Company reserves the right
to change, by one or more Officer's Certificates, any such place or the
Security Registrar; and provided, further, that the Company reserves
the right to designate, by one or more Officer's Certificates, its
principal office in Denver, Colorado as any such place or itself as the
Security Registrar;
(g) the Securities of Series No. 15 shall be redeemable at the
option of the Company at any time prior to their Maturity, in whole or
in part, at a redemption price equal to the greater of (i) 100% of the
principal amount thereof to be redeemed, or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on
such Securities to be redeemed, discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 20 basis points, plus in each case,
accrued and unpaid interest to the Redemption Date. For purposes
hereof, the following defined terms shall have the meaning ascribed to
them:
"Treasury Yield" means, for any Redemption Date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities of Series
No. 15 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of the Securities of Series No. 15.
"Comparable Treasury Price" means, for any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding the Redemption Date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New
8
York and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if that release (or any successor release) is not
published or does not contain those prices on that Business Day, (A)
the average of the Reference Treasury Dealer Quotations for the
Redemption Date, after excluding the highest and lowest Reference
Treasury Dealer Quotations for the Redemption Date, or (B) if the
Trustee obtains fewer than four Reference Treasury Dealer Quotations,
the average of all of the Quotations.
"Independent Investment Banker" means Banc One Capital
Markets, Inc., or its successor or, if such firm or its successor is
unwilling or unable to select the Comparable Treasury Issue, one of the
remaining Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital
Markets, Inc., McDonald Investments Inc. or UBS Securities LLC and any
other Primary Treasury Dealer designated by, and not affiliated with,
Banc One Capital Markets, Inc., McDonald Investments Inc. or UBS
Securities LLC and their respective successors, provided, however, that
if any of the foregoing or any of its designees ceases to be a Primary
Treasury Dealer, the Company will appoint another Primary Treasury
Dealer as a substitute and (ii) any other Primary Treasury Dealer
selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government
securities dealer in the United States.
"Reference Treasury Dealer Quotations" means, for each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker by the Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding the Redemption Date.
(h) not applicable;
(i) not applicable;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) not applicable;
(o) not applicable;
(p) not applicable;
(q) the Securities of Series No. 15 are to be initially registered
in the name of Cede & Co., as nominee for The Depository Trust Company
(the "Depositary"). Such Securities shall not be transferable or
exchangeable, nor shall any purported transfer be registered, except as
follows:
9
(i) such Securities may be transferred in whole, and
appropriate registration of transfer effected, if such
transfer is by such nominee to the Depositary, or by the
Depositary to another nominee thereof, or by any nominee of
the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor securities
depositary or any nominee thereof; and
(ii) such Securities may be exchanged for definitive
Securities registered in the respective names of the
beneficial holders thereof, and thereafter shall be
transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Trustee that it is unwilling or unable to continue to
act as securities depositary with respect to such
Securities or the Depositary has ceased to be a
clearing agency registered under the Securities
Exchange Act of 1934, as amended, and the Trustee
shall not have been notified by the Company within
ninety (90) days of the identity of a successor
securities depositary with respect to such
Securities; or
(B) the Company shall have delivered to the
Trustee a Company Order to the effect that such
Securities shall be so exchangeable on and after a
date specified therein;
(r) not applicable;
(s) no service charge shall be made for the registration of
transfer or exchange of the Securities of Series No. 15; provided,
however, that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with
the exchange or transfer;
(t) not applicable;
(u) (i) If the Company shall have caused the Company's
indebtedness in respect of any Securities of Series No. 15 to
have been satisfied and discharged prior to the Maturity of
such Securities, as provided in Section 901 of the Original
Indenture, the Company shall, promptly after the date of such
satisfaction and discharge, give a notice to each Person who
was a Holder of any of such Securities on such date stating
(A)(1) the aggregate principal amount of such Securities and
(2) the aggregate amount of any money (other than amounts, if
any, deposited in respect of accrued interest on such
Securities) and the aggregate principal amount of, the rate or
rates of interest on, and the aggregate fair market value of,
any Eligible Obligations deposited pursuant to Section 901 of
the Original Indenture with respect to such Securities and (B)
that the Company will provide (and the Company shall promptly
so provide) to such Person, or any beneficial owner of such
Securities holding through such Person (upon written request
to the Company sent to an address specified in such notice),
such other information as such Person or beneficial owner, as
the case may be, reasonably may request in order to enable it
to determine the federal income tax consequences to it
resulting from the satisfaction and discharge of the Company's
indebtedness in respect of such Securities. Thereafter, the
Company shall, within forty-five (45) days after the end of
each calendar year, give to each
10
Person who at any time during such calendar year was a Holder of such
Securities a notice containing (X) such information as may be necessary
to enable such Person to report its income, gain or loss for federal
income tax purposes with respect to such Securities or the assets held
on deposit in respect thereof during such calendar year or the portion
thereof during which such Person was a Holder of such Securities, as
the case may be (such information to be set forth for such calendar
year as a whole and for each month during such year) and (Y) a
statement to the effect that the Company will provide (and the Company
shall promptly so provide) to such Person, or any beneficial owner of
such Securities holding through such Person (upon written request to
the Company sent to an address specified in such notice), such other
information as such Person or beneficial owner, as the case may be,
reasonably may request in order to enable it to determine its income,
gain or loss for federal income tax purposes with respect to such
Securities or such assets for such year or portion thereof, as the case
may be. The obligation of the Company to provide or cause to be
provided information for purposes of income tax reporting by any Person
as described in the first two sentences of this paragraph shall be
deemed to have been satisfied to the extent that the Company has
provided or caused to be provided substantially comparable information
pursuant to any requirements of the Internal Revenue Code of 1986, as
amended from time to time (the "Code") and United States Treasury
regulations thereunder.
(i) Notwithstanding the provisions of subparagraph (i) above, the
Company shall not be required to give any notice specified in such
subparagraph or to otherwise furnish any of the information
contemplated therein if the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such Securities
will not recognize income, gain or loss for federal income tax purposes
as a result of the satisfaction and discharge of the Company's
indebtedness in respect of such Securities and such Holders will be
subject to federal income taxation on the same amounts and in the same
manner and at the same times as if such satisfaction and discharge had
not occurred.
(ii) Anything in this clause (u) to the contrary notwithstanding,
the Company shall not be required to give any notice specified in
subparagraph (i) or to otherwise furnish the information contemplated
therein or to deliver any Opinion of Counsel contemplated by
subparagraph (ii) if the Company shall have caused Securities of Series
No. 15 to be deemed to have been paid for purposes of the Indenture, as
provided in Section 901 of the Original Indenture, but shall not have
effected the satisfaction and discharge of its indebtedness in respect
of such Securities pursuant to such Section.
(v) The Securities of Series No. 15 shall be substantially in the form
attached hereto as Exhibit B and shall have such further terms as are set forth
in such form.
11
ARTICLE THREE
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. 15 is a supplement to the Original
Indenture. As previously supplemented and further supplemented by this
Supplemental Indenture No. 15, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture, all previous
supplements thereto and this Supplemental Indenture No. 15 shall together
constitute one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 15 to be duly executed as of the day and year first
above written.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Benjamin G. S. Fowke III
--------------------------------------
Name: Benjamin G. S. Fowke III
Title: Vice President and Treasurer
STATE OF MINNESOTA )
) ss.:
CITY OF MINNEAPOLIS )
On the 1st day of September, 2003, before me personally came Benjamin
G. S. Fowke III to me known, who, being by me duly sworn, did depose and say
that he is a Vice President and Treasurer of Public Service Company of Colorado,
one of the corporations described in and which executed the foregoing
instrument; and that he signed his name thereto by authority of the Board of
Directors of said corporation.
/s/ Sharon M. Quellhorst
------------------------------------------
Name: Sharon M. Quellhorst
Notary Public, State of Minnesota
Commission Expires: January 31, 2005
13
U.S. BANK TRUST NATIONAL ASSOCIATION,
Trustee
By: /s/ Ignazio Tamburello
--------------------------------------
Name: Ignazio Tamburello
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
CITY AND COUNTY OF NEW YORK )
On the 2nd day of September, 2003, before me personally came Ignazio
Tamburello, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of U.S. Bank Trust National Association, the
banking association described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said banking association.
/s/ Rouba Fakih
------------------------------------------
Name: Rouba Fakih
Notary Public, State of New York
Commission Expires: February 20, 2007
14
EXHIBIT A
FORM OF SECURITY
(See legend at the end of this Security for
restrictions on transfer)
PUBLIC SERVICE COMPANY OF COLORADO
First Collateral Trust Bond, Series No. 14
Original Interest Accrual Date September 9, 2003
Interest Rate: 4.375%
Stated Maturity: October 1, 2008
Interest Payment Dates: April 1 and October 1
Regular Record Dates: March 15 and September 15
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture
Principal Amount Registered No.
$ CUSIP 744448 BW 0
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on the Stated Maturity specified above, and to pay interest thereon from
the Original Interest Accrual Date specified above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on the Interest Payment Dates specified above in each
year, commencing April 1, 2004, and at Maturity, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly provided for. The
interest so payable, and paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date specified above (whether or not a Business
Day) next preceding such Interest Payment Date. Notwithstanding the foregoing,
interest payable at Maturity shall be paid to the Person to whom principal shall
be paid. Except as otherwise provided in said Indenture, any such interest not
so paid or duly provided for shall forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice of which shall be given to Holders of
Securities of this series not less than 15 days prior to such Special Record
Date, or be paid in such other manner as permitted by the Indenture.
EXHIBIT A-1
Payment of the principal of this Security and interest hereon at
Maturity shall be made upon presentation of this Security at the Corporate Trust
Office of U.S. Bank Trust National Association, in New York, New York or at such
other office or agency as may be designated for such purpose by the Company from
time to time. Payment of interest on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register, except that if
such Person shall be a securities depositary, such payment may be made by such
other means in lieu of check as shall be agreed upon by the Company, the Trustee
and such Person. Payment of the principal of and interest on this Security, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of October 1, 1993
(such Indenture as originally executed and delivered and as supplemented or
amended from time to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and U.S. Bank Trust National Association
(formerly First Trust of New York, National Association) as successor trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the property mortgaged, pledged
and held in trust, the nature and extent of the security and the respective
rights, limitations of rights, duties and immunities of the Company, the Trustee
and the Holders of the Securities thereunder and of the terms and conditions
upon which the Securities are, and are to be, authenticated and delivered and
secured. The acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms and provisions of
the Indenture. This Security is one of the series designated above.
If any Interest Payment Date or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this
Security on such date may be made on the next succeeding Business Day; and, if
such payment is made or duly provided for on such Business Day, no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date or Stated Maturity, as the case may be, to such Business Day.
This Security shall be redeemable at the option of the Company at any
time prior to Maturity, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount hereof to be redeemed, or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest on this Security to be redeemed, discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Yield plus 15 basis points, plus in each case, accrued and
unpaid interest to the Redemption Date. For purposes hereof, the following
defined terms shall have the meaning ascribed to them:
"Treasury Yield" means, for any Redemption Date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities of Series No. 14 that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities of Series No. 14.
EXHIBIT A-2
"Comparable Treasury Price" means, for any Redemption Date, (i) the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third Business Day
preceding the Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or
(ii) if that release (or any successor release) is not published or does not
contain those prices on that Business Day, (A) the average of the Reference
Treasury Dealer Quotations for the Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations for the Redemption Date, or (B)
if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all of the Quotations.
"Independent Investment Banker" means Banc One Capital Markets, Inc. or
its successor or, if such firm or its successor is unwilling or unable to select
the Comparable Treasury Issue, one of the remaining Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital Markets,
Inc., McDonald Investments Inc. or UBS Securities LLC and any other Primary
Treasury Dealer designated by, and not affiliated with, Banc One Capital
Markets, Inc., McDonald Investments Inc. or UBS Securities LLC and their
respective successors, provided, however, that if any of the foregoing or any of
its designees ceases to be a Primary Treasury Dealer, the Company will appoint
another Primary Treasury Dealer as a substitute and (ii) any other Primary
Treasury Dealer selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government securities
dealer in the United States.
"Reference Treasury Dealer Quotations" means, for each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Independent Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker by the Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.
If an Event of Default shall occur and be continuing, the principal of
this Security may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or
EXHIBIT A-3
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in the Indenture and subject to certain limitations therein
set forth, this Security or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient, to pay when due the principal of and
interest on this Security when due.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of U.S. Bank Trust National Association, in New York, New York or such
other office or agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like tenor
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, and in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of the same series, of any
authorized denominations, as requested by the Holder surrendering the same, and
of like tenor upon surrender of the Security or Securities to be exchanged at
the office of U.S. Bank Trust National Association, in New York, New York or
such other office or agency as may be designated by the Company from time to
time.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
As used herein "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
The City of New York, New York or other city in which is located any office or
agency maintained for the payment of principal or interest on this Security, are
authorized or required by law, regulation or executive order to remain closed.
All other terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
EXHIBIT A-4
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or interest on any Securities, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or director, as such, past,
present or future of the Company or of any predecessor or successor corporation
(either directly or through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that the Indenture and all the Securities
are solely corporate obligations and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of the Indenture and the issuance of the
Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee or an Authenticating Agent by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
EXHIBIT A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and its corporate seal to be hereunto affixed and attested.
PUBLIC SERVICE COMPANY OF COLORADO
By: ______________________________________
[Title]
Attest: ______________________________
[Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: _______________________________
U.S. BANK TRUST OR U.S. BANK TRUST
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
as Trustee as Trustee
By:_____________________________ By:___________________________
Authorized Officer AS AUTHENTICATING AGENT
By:___________________________
Authorized Officer
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY MAY NOT BE TRANSFERRED OR EXCHANGED, NOR MAY ANY
PURPORTED TRANSFER BE REGISTERED, EXCEPT (i) THIS SECURITY MAY BE TRANSFERRED IN
WHOLE, AND APPROPRIATE REGISTRATION OF TRANSFER EFFECTED, IF SUCH TRANSFER IS BY
CEDE & CO., AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), TO
THE DEPOSITARY, OR BY THE DEPOSITARY TO ANOTHER NOMINEE THEREOF, OR BY ANY
NOMINEE OF THE DEPOSITARY TO ANY OTHER NOMINEE THEREOF, OR BY THE DEPOSITARY OR
ANY NOMINEE THEREOF TO ANY SUCCESSOR SECURITIES DEPOSITARY OR ANY NOMINEE
THEREOF; AND (ii) THIS SECURITY MAY BE EXCHANGED FOR DEFINITIVE SECURITIES
REGISTERED IN THE RESPECTIVE NAMES OF THE BENEFICIAL HOLDERS HEREOF, AND
THEREAFTER SHALL BE TRANSFERABLE WITHOUT RESTRICTIONS IF: (A) THE DEPOSITARY, OR
ANY SUCCESSOR SECURITIES DEPOSITARY, SHALL HAVE NOTIFIED THE COMPANY AND THE
TRUSTEE THAT IT IS UNWILLING OR UNABLE TO CONTINUE TO ACT AS SECURITIES
DEPOSITARY WITH RESPECT TO THE SECURITIES AND THE TRUSTEE SHALL NOT HAVE BEEN
NOTIFIED BY THE COMPANY WITHIN NINETY (90) DAYS OF THE IDENTITY OF A SUCCESSOR
EXHIBIT A-6
SECURITIES DEPOSITARY WITH RESPECT TO THE SECURITIES; OR (B) THE COMPANY SHALL
HAVE DELIVERED TO THE TRUSTEE A COMPANY ORDER TO THE EFFECT THAT THE SECURITIES
SHALL BE SO EXCHANGEABLE ON AND AFTER A DATE SPECIFIED THEREIN.
EXHIBIT A-7
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
[please insert social security or other identifying number of assignee]
________________________________________________________________________________
[please print or typewrite name and address of assignee]
________________________________________________________________________________
the within Security of PUBLIC SERVICE COMPANY OF COLORADO and does hereby
irrevocably constitute and appoint __________________________________ ,
Attorney, to transfer said Security on the books of the within-mentioned
Company, with full power of substitution in the premises.
Dated:____________________________
___________________________________________
Notice: The signature to this assignment must correspond with the name
as written upon the face of the Security in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT A-8
EXHIBIT B
FORM OF SECURITY
(See legend at the end of this Security for
restrictions on transfer)
PUBLIC SERVICE COMPANY OF COLORADO
First Collateral Trust Bond, Series No. 15
Original Interest Accrual Date September 9, 2003
Interest Rate: 5.50%
Stated Maturity: April 1, 2014
Interest Payment Dates: April 1 and October 1
Regular Record Dates: March 15 and September 15
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture
-----------------------------------------
Principal Amount Registered No.
$ CUSIP 744448 BX 8
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
below), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on the Stated Maturity specified above, and to pay interest thereon from
the Original Interest Accrual Date specified above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on the Interest Payment Dates specified above in each
year, commencing April 1, 2004, and at Maturity, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly provided for. The
interest so payable, and paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date specified above (whether or not a Business
Day) next preceding such Interest Payment Date. Notwithstanding the foregoing,
interest payable at Maturity shall be paid to the Person to whom principal shall
be paid. Except as otherwise provided in said Indenture, any such interest not
so paid or duly provided for shall forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to
EXHIBIT B-1
be fixed by the Trustee, notice of which shall be given to Holders of Securities
of this series not less than 15 days prior to such Special Record Date, or be
paid in such other manner as permitted by the Indenture.
Payment of the principal of this Security and interest hereon at
Maturity shall be made upon presentation of this Security at the Corporate Trust
Office of U.S. Bank Trust National Association, in New York, New York or at such
other office or agency as may be designated for such purpose by the Company from
time to time. Payment of interest on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register, except that if
such Person shall be a securities depositary, such payment may be made by such
other means in lieu of check as shall be agreed upon by the Company, the Trustee
and such Person. Payment of the principal of and interest on this Security, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of October 1, 1993
(such Indenture as originally executed and delivered and as supplemented or
amended from time to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and U.S. Bank Trust National Association
(formerly First Trust of New York, National Association) as successor trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the property mortgaged, pledged
and held in trust, the nature and extent of the security and the respective
rights, limitations of rights, duties and immunities of the Company, the Trustee
and the Holders of the Securities thereunder and of the terms and conditions
upon which the Securities are, and are to be, authenticated and delivered and
secured. The acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms and provisions of
the Indenture. This Security is one of the series designated above.
If any Interest Payment Date or the Stated Maturity shall not be a
Business Day (as hereinafter defined), payment of the amounts due on this
Security on such date may be made on the next succeeding Business Day; and, if
such payment is made or duly provided for on such Business Day, no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date or Stated Maturity, as the case may be, to such Business Day.
This Security shall be redeemable at the option of the Company at any
time prior to Maturity, in whole or in part, at a redemption price equal to the
greater of (i) 100% of the principal amount hereof to be redeemed, or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest on this Security to be redeemed, discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Yield plus 20 basis points, plus in each case, accrued and
unpaid interest to the Redemption Date. For purposes hereof, the following
defined terms shall have the meaning ascribed to them:
"Treasury Yield" means, for any Redemption Date, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities of Series No. 15 that would be utilized, at
the time of selection and in accordance with customary
EXHIBIT B-2
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Securities of Series No. 15.
"Comparable Treasury Price" means, for any Redemption Date, (i) the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third Business Day
preceding the Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or
(ii) if that release (or any successor release) is not published or does not
contain those prices on that Business Day, (A) the average of the Reference
Treasury Dealer Quotations for the Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations for the Redemption Date, or (B)
if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all of the Quotations.
"Independent Investment Banker" means Banc One Capital Markets, Inc. or
its successor or, if such firm or its successor is unwilling or unable to select
the Comparable Treasury Issue, one of the remaining Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital Markets,
Inc., McDonald Investments Inc. or UBS Securities LLC and any other Primary
Treasury Dealer designated by, and not affiliated with, Banc One Capital
Markets, Inc., McDonald Investments Inc. or UBS Securities LLC and their
respective successors, provided, however, that if any of the foregoing or any of
its designees ceases to be a Primary Treasury Dealer, the Company will appoint
another Primary Treasury Dealer as a substitute and (ii) any other Primary
Treasury Dealer selected by the Company.
"Primary Treasury Dealer" means any primary U.S. Government securities
dealer in the United States.
"Reference Treasury Dealer Quotations" means, for each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Independent Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker by the Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding the Redemption Date.
If an Event of Default shall occur and be continuing, the principal of
this Security may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains
EXHIBIT B-3
provisions permitting the Holders of a majority in principal amount of the
Securities then Outstanding, on behalf of the Holders of all Securities, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in the Indenture and subject to certain limitations therein
set forth, this Security or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient, to pay when due the principal of and
interest on this Security when due.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of U.S. Bank Trust National Association, in New York, New York or such
other office or agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like tenor
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, and in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of the same series, of any
authorized denominations, as requested by the Holder surrendering the same, and
of like tenor upon surrender of the Security or Securities to be exchanged at
the office of U.S. Bank Trust National Association, in New York, New York or
such other office or agency as may be designated by the Company from time to
time.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
As used herein "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
The City of New York, New York or other city in which is located any office or
agency maintained for the payment of principal or interest on this Security, are
authorized or required by law, regulation or executive order to remain closed.
All other terms used in
EXHIBIT B-4
this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or interest on any Securities, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under the
Indenture, against, and no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, shareholder, officer or director, as such, past,
present or future of the Company or of any predecessor or successor corporation
(either directly or through the Company or a predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that the Indenture and all the Securities
are solely corporate obligations and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of the Indenture and the issuance of the
Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee or an Authenticating Agent by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
EXHIBIT B-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and its corporate seal to be hereunto affixed and attested.
PUBLIC SERVICE COMPANY OF COLORADO
By:_______________________________________
[Title]
Attest:_______________________________
[Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:________________________________
U.S. BANK TRUST OR U.S. BANK TRUST
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
as Trustee as Trustee
By:_____________________________ By:____________________________
Authorized Officer AS AUTHENTICATING AGENT
By:____________________________
Authorized Officer
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY MAY NOT BE TRANSFERRED OR EXCHANGED, NOR MAY ANY
PURPORTED TRANSFER BE REGISTERED, EXCEPT (i) THIS SECURITY MAY BE TRANSFERRED IN
WHOLE, AND APPROPRIATE REGISTRATION OF TRANSFER EFFECTED, IF SUCH TRANSFER IS BY
CEDE & CO., AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY"), TO
THE DEPOSITARY, OR BY THE DEPOSITARY TO ANOTHER NOMINEE THEREOF, OR BY ANY
NOMINEE OF THE DEPOSITARY TO ANY OTHER NOMINEE THEREOF, OR BY THE DEPOSITARY OR
ANY NOMINEE THEREOF TO ANY SUCCESSOR SECURITIES DEPOSITARY OR ANY NOMINEE
THEREOF; AND (ii) THIS SECURITY MAY BE EXCHANGED FOR DEFINITIVE SECURITIES
REGISTERED IN THE RESPECTIVE NAMES OF THE BENEFICIAL HOLDERS HEREOF, AND
THEREAFTER SHALL BE TRANSFERABLE WITHOUT RESTRICTIONS IF: (A) THE DEPOSITARY, OR
ANY SUCCESSOR SECURITIES DEPOSITARY, SHALL HAVE NOTIFIED THE COMPANY AND THE
TRUSTEE THAT IT IS UNWILLING OR UNABLE TO CONTINUE TO ACT AS SECURITIES
DEPOSITARY WITH RESPECT TO THE SECURITIES AND THE TRUSTEE SHALL NOT HAVE BEEN
NOTIFIED BY THE COMPANY WITHIN NINETY (90) DAYS OF THE IDENTITY OF A SUCCESSOR
EXHIBIT B-6
SECURITIES DEPOSITARY WITH RESPECT TO THE SECURITIES; OR (B) THE COMPANY SHALL
HAVE DELIVERED TO THE TRUSTEE A COMPANY ORDER TO THE EFFECT THAT THE SECURITIES
SHALL BE SO EXCHANGEABLE ON AND AFTER A DATE SPECIFIED THEREIN.
EXHIBIT B-7
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
[please insert social security or other identifying number of assignee]
________________________________________________________________________________
[please print or typewrite name and address of assignee]
________________________________________________________________________________
the within Security of PUBLIC SERVICE COMPANY OF COLORADO and does hereby
irrevocably constitute and appoint __________________________________ ,
Attorney, to transfer said Security on the books of the within-mentioned
Company, with full power of substitution in the premises.
Dated:___________________________
_______________________________________
Notice: The signature to this assignment must correspond with the name
as written upon the face of the Security in every particular without
alteration or enlargement or any change whatsoever.
EXHIBIT B-8
SCHEDULE A
SUPPLEMENTAL INDENTURES
DATE OF PRINCIPAL
SUPPLEMENTAL PRINCIPAL AMOUNT
INDENTURE SERIES OF BONDS AMOUNT ISSUED OUTSTANDING
--------- ---------------- -------------- -----------
November 1, 1993 Series No. 1 $134,500,000 $134,500,000
January 1, 1994 Series No. 2 due 2001 $102,667,000 None
and
Series No. 2 due 2024 $110,000,000 $110,000,000
September 2, 1994 None None None
(Appointment of
Successor Trustee)
May 1, 1996 Series No. 3 $125,000,000 $125,000,000
November 1, 1996 Series No. 4 $250,000,000 $175,000,000
February 1, 1997 Series No. 5 $150,000,000 None
April 1, 1998 Series No. 6 $250,000,000 None
August 15, 2002 Series No. 7 $ 48,750,000 $ 48,750,000
September 1, 2002 Series No. 8 $600,000,000 None
September 15, 2002 Series No. 9 $530,000,000 None
April 1, 2003 Series No. 10 $600,000,000 $600,000,000
March 1, 2003 Series No. 11 $250,000,000 $250,000,000
May 1, 2003 Series No. 13 $350,000,000 $350,000,000
SCHEDULE A-1