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FIRST SUPPLEMENTAL INDENTURE
Dated as of _______ __, 1998
between
PUBLIC SERVICE COMPANY OF COLORADO
AS ISSUER
and
THE BANK OF NEW YORK
AS TRUSTEE
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TABLE OF CONTENTS
Page
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I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1. Definition of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . .2
II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES. . . . . . . . . . . . . . . . .3
2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . .3
2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.4. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
III REDEMPTION OF THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . .6
3.1. Special Event Redemption . . . . . . . . . . . . . . . . . . . . . . . . .6
3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . .7
3.3. No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
IV EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . . . . . . . .8
4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . .8
4.2. Notice of Extension. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.3. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . .9
V EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1. Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2. Payment Upon Resignation or Removal. . . . . . . . . . . . . . . . . . . 10
VI SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1. Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
VII COVENANT TO LIST ON EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . . 11
7.1. Listing on an Exchange . . . . . . . . . . . . . . . . . . . . . . . . . 11
VIII FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8.1. Form of Debenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IX ORIGINAL ISSUE OF DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . 20
9.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . . . 20
i
X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.1. Ratification of Indenture . . . . . . . . . . . . . . . . . . . . . 20
10.2. Trustee Not Responsible for Recitals. . . . . . . . . . . . . . . . 20
10.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.4. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.5. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of ____________, 1998 (the
"First Supplemental Indenture"), between Public Service Company of Colorado,
a corporation duly organized and existing under the laws of the State of
Colorado, having its principal office at 1225 17th Street, Denver, Colorado
80202 (the "Company"), and The Bank of New York, as trustee (the "Trustee")
under the Indenture dated as of __________, 1998 (the "Indenture"), between
the Company and the Trustee.
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
debentures, notes or other evidence of indebtedness (the "Securities"), to be
issued from time to time in one or more series as might be determined by the
Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its ___% Deferrable Interest Subordinated Debentures due
_________ (the "Debentures"), the form and substance of such Debentures and
the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture;
WHEREAS, PSCO Capital Trust I, a Delaware statutory business trust
(the "Trust"), intends to offer to the public $___ million aggregate
liquidation amount of its ___% Trust Originated Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the
Company of $___ million aggregate liquidation amount of its ___% Trust
Originated Common Securities, in $____ million aggregate principal amount of
the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of
the Debentures by the Holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and
the terms, provisions and conditions thereof, the Company covenants and
agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Business Day; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Guarantee; (vi) Preferred Securities
Certificate; (vii) Pricing Agreement; (viii) Property Trustee; (ix) Trust
Securities; and (x) Underwriting Agreement; and
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Additional Interest" shall have the meaning set forth in Section
2.5(c).
"Change in 1940 Act Law" shall have the meaning set forth in
Section 3.1.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Declaration" means the Amended and Restated Declaration of Trust
of PSCO Capital Trust I, a Delaware statutory business trust, dated as of
_________, 1998.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Property
Trustee are to be distributed to the holders of the Trust Securities issued
by the Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth
in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a).
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"Interest Payment Date" shall have the meaning set forth in Section
2.5(a).
"Investment Company Event" shall have the meaning set forth in
Section 3.1.
"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Ministerial Action" shall have the meaning set forth in Section
3.1.
"90 Day Period" shall have the meaning set forth in Section 3.1.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4(a).
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2(a).
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Special Event" shall have the meaning set forth in Section 3.1.
"Tax Event" shall have the meaning set forth in Section 3.1.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the
"___% Deferrable Interest Subordinated Debentures due _____ ", limited in
aggregate principal amount to $___ million, which amount shall be as set
forth in any written order of the Company for the authentication and delivery
of Debentures pursuant to Section 303 of the Indenture.
SECTION 2.2. MATURITY.
The Maturity Date of the Debentures is ____________, 20__.
SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued
in fully registered certificated form without interest coupons in
denominations of $25 or integral multiples of $25. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of
such Debentures will be registrable and such Debentures will be exchangeable
for Debentures
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bearing identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the Holder at such address as shall
appear in the Security Register. Notwithstanding the foregoing, so long as
the Holder of any Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee.
SECTION 2.4. GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustee. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security Certificate
which represents Preferred Securities other than Preferred Securities held
by the Clearing Agency or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Debentures
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates
are presented to the Security Registrar for transfer or reissuance at which
time such Preferred Security Certificates will be cancelled and a
Debenture, registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
4
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depository, or to a successor Depository
selected or approved by the Company or to a nominee of such successor
Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the
Depository for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depository for such series is not
appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company
will execute, and, subject to Article Three of the Indenture, the Trustee,
upon written notice from the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time determine that the Debentures shall no
longer be represented by the Global Debenture. In such event the Company
will execute, and subject to Section 303 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debenture shall be cancelled
by the Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debentures to the Depository for
delivery to the Persons in whose names such Debentures are so registered.
SECTION 2.5. INTEREST.
(a) Each Debenture will bear interest at the rate of ___% per
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date," commencing on June 30, 1998), to the
Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of (i) Debentures of which the
Property Trustee is the Holder and the Preferred Securities are in book-entry
only form or (ii) a Global Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if (i) the Debentures are held by the Property Trustee
and the Preferred Securities are no longer in book-entry only form or (ii)
the Debentures are not represented by a Global Debenture, the Company may
select a regular record date for such interest
5
installment which shall be any date at least one Business Day but less than
sixty business days before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any period
shorter than a full quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in such a 90-day
period. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder of
any Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. SPECIAL EVENT REDEMPTION.
If a Special Event (as defined below) has occurred and is
continuing then, notwithstanding Section 3.2(a) but subject to Section
3.2(b), the Company shall have the right upon not less than 30 days nor more
than 60 days notice to the Holders of the Debentures to redeem the
Debentures, in whole or in part, for cash within 90 days following the
occurrence of such Special Event (the "90 Day Period") at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest thereon, including Compounded Interest and Additional
Interest, if any, to the date of such redemption (the "Redemption Price");
provided, however, that in the case of an occurrence of a Tax Event, if at
the time there is available to the Company the opportunity to eliminate,
within the 90 Day Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued by the
Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial Action
6
pursuant to its obligations under the Declaration. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption
Price is to be paid.
A "Special Event" shall mean either a Tax Event or an Investment
Company Event. "Tax Event" shall mean that the Company shall have received
an opinion of counsel (which may be regular counsel to the Company or an
Affiliate, but not an employee thereof, which must be acceptable to the
Property Trustee of the Trust) experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such interpretation or
pronouncement is announced on or after the date of original issuance of
Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is subject to United States Federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the Company to the Trust
on the Debentures will not be deductible for United States Federal income tax
purposes, or (iii) the Trust is subject to more than a de minimis amount of
other taxes, duties, assessments or other governmental charges. "Investment
Company Event" shall mean the occurrence of a change in law or regulation or
a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be
considered an "Investment Company" that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities.
SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, except as otherwise may be
specified in this First Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after _________, ____, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the Holder of the Debentures, at the Optional Redemption Price. If
the Debentures are only partially redeemed pursuant to this Section 3.2, the
Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided, that if at the time of redemption the
Debentures are registered as a Global Debenture, the Depository shall
determine, in accordance with its procedures, the principal amount of such
Debentures held by each Debenture Holder to be redeemed. The Optional
Redemption Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or at such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount
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sufficient to pay the Optional Redemption Price by 10:00 a.m., New York time,
on the date such Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities
are then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
SECTION 3.3. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, so long as no Event of Default with
respect to the Debentures has occurred and is continuing, to defer payments
of interest by extending the interest payment period of such Debentures for a
period not exceeding 20 consecutive quarters (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be
due and payable; provided that no Extended Interest Payment Period may extend
beyond the Maturity Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of
the interest payment period pursuant to this Section 4.1, will bear interest
thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest accrued
and unpaid on the Debentures, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be payable to
the Holders of the Debentures in whose names the Debentures are registered in
the Security Register on the first record date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further extend such period, provided that
such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and upon the payment of
all Deferred Interest then due, the Company may commence a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except
(i) at the end thereof and (ii) upon a redemption of the Debentures during an
Extended Interest Payment Period, but the Company may prepay at any time all
or any portion of the interest accrued during an Extended Interest Payment
Period.
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SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Administrative Trustee,
the Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give notice
of the record date, or the date such Distributions are payable, to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities issued by the Trust, but in any event at
least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least ten Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give
notice of the record or payment date of such interest payment to the New York
Stock Exchange or other applicable self-regulatory organization or to Holders
of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3. LIMITATION OF TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, (ii) there shall have occurred any Event
of Default, as defined in the Indenture, or (iii) the Company shall be in
default with respect to its payment obligations under the Guarantee, then (a)
the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock (other than (i) as a result of a
reclassification of its capital stock or the exchange or conversion of one
class or series of its capital stock for another class or series of its
capital stock or (ii) the purchase of fractional interests in shares of its
capital stock pursuant to the conversion or exchange provisions of such
capital stock or security being converted or exchanged) or make any guarantee
payment with respect thereto, (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank PARI PASSU with or junior to
the Debentures and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee and any
similar guarantee issued by the Company on behalf of holders of preferred
securities issued by an issuer holding Securities issued under the Indenture).
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ARTICLE V
EXPENSES
SECTION 5.1. PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the
Trust Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses relating to
the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying
agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone
and other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to this
Section 5.2, the Company shall pay to the Trustee all amounts accrued to the
date of such termination, removal or resignation. Upon termination of the
Declaration or the removal or resignation of the Delaware Trustee or the
Property Trustee, as the case may be, pursuant to Section 7.10 of the
Declaration, the Company shall pay to the Delaware Trustee or the Property
Trustee, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
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ARTICLE VI
SUBORDINATION
SECTION 6.1. SUBORDINATION.
The indebtedness evidenced by the Debenture shall be, to the extent
and in the manner set forth in the Indenture, subordinate and junior in right
of payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) with respect to the Debentures, and the Debentures
shall rank PARI PASSU in right of payment with each other series of
Securities issued under the Indenture, with the exception of any series of
Securities which by its terms provides otherwise.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. LISTING ON AN EXCHANGE.
If the Debentures are to be distributed to the holders of Preferred
Securities as described in Section 2.4(a), the Company will, if the
Debentures are not already so listed, use its best efforts to list such
Debentures on the New York Stock Exchange, Inc. or on such other exchange as
the Preferred Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT -- This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Debenture (other than a transfer of this Debenture as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository
or any such nominee to a successor Depository or a nominee of such successor
Depository) may be registered except in limited circumstances.
11
Unless this Debenture is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and
any Debenture issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
No. ____________________
$_______________________
CUSIP No. ______________
12
PUBLIC SERVICE COMPANY OF COLORADO
___% DEFERRABLE INTEREST SUBORDINATED DEBENTURE
DUE _______
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________
Dollars ($___________) on _________, ____, and to pay interest on said
principal sum from ____________, 199__, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest
has been paid or duly provided for, quarterly (subject to deferral as set
forth herein) in arrears on March 31, June 30, September 30 and December 31
of each year commencing June 30, 1998, at the rate of ___% per annum until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Debenture is not a
Business Day, then payment of interest payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the Business
Day next preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS
OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL
DEBENTURE --which shall be the close of business on the ____ day next preceding
such Interest Payment Date.] Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
Holders on such regular record date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Debentures not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal
of (and premium, if any) and the interest on this Debenture shall be payable
at the office or agency of the Trustee maintained for that purpose in any
coin or currency of the United States of America that at the time of payment
is legal tender for payment of public and private debts; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the registered Holder at such address as shall appear in the
Security Register.
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Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Property Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as
may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or
her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each
Holder hereof, by his or her acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated
---------------------------------
PUBLIC SERVICE COMPANY OF COLORADO
By:
-------------------------------------
Name:
Title:
Attest:
By:
- ---------------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described
in the within-mentioned Indenture.
Dated
- ---------------------------------------
THE BANK OF NEW YORK, as Trustee
By:
-------------------------------------
Authorized Signatory
15
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of ________________, 1998, duly executed
and delivered between the Company and The Bank of New York, as Trustee (the
"Trustee"), as supplemented by the First Supplemented Indenture dated as of
_______, 1998, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities. By the terms
of the Indenture, the Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided
in the Indenture. This series of Securities is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may not be
redeemed by the Company prior to ______________, ______. The Company shall
have the right to redeem this Debenture at the option of the Company, without
premium or penalty, in whole or in part at any time and from time to time on
or after ___________, ____ (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, including any Compounded Interest and Additional Interest, if any,
to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Optional Redemption Price.
If a Special Event (as defined below) has occurred and is
continuing then the Company shall have the right upon not less than 30 days
nor more than 60 days notice to the Holders of the Debentures to redeem the
Debentures, in whole or in part, for cash within 90 days following the
occurrence of such Special Event (the "90 Day Period") at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest thereon, including Compounded Interest and Additional
Interest, if any, to the date of such redemption (the "Redemption Price");
provided, however, that in the case of a Tax Event, if at the time there is
available to the Company the opportunity to eliminate, within the 90 Day
Period, the Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the
Trust or the Holders of the Trust Securities issued by the Trust, the Company
shall pursue such Ministerial Action in lieu of redemption, and, provided,
further, that the Company shall have no right to redeem the Debentures while
the Trust is pursuing any Ministerial Action pursuant to its obligations
under the Declaration. The Redemption Price shall be paid prior to 12:00
noon, New York time, on the date of such redemption or such earlier time as
the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New
York time, on the date such Redemption Price is to be paid.
16
A "Special Event" shall mean either a Tax Event or an Investment
Company Event. "Tax Event" shall mean that the Company shall have received an
opinion of counsel (which may be regular counsel to the Company or an
Affiliate, but not an employee thereof, which must be acceptable to the
Property Trustee of the Trust) experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such interpretation or
pronouncement is announced on or after the date of original issuance of
Preferred Securities, there is more than an insubstantial risk that (i) the
Trust is subject to United States Federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the Company to the Trust
on the Debentures will not be deductible for United States Federal income tax
purposes, or (iii) the Trust is subject to more than a de minimis amount of
other taxes, duties, assessments or other governmental charges. "Investment
Company Event" shall mean the occurrence of a change in law or regulation or
a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be
considered an "Investment Company" that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities.
Any redemption pursuant to the occurrence of a Special Event will
be made upon not less than 30 days nor more than 60 days notice, at the
Redemption Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided
that if, at the time of redemption, the Debentures are registered as a Global
Debenture, the Depository shall determine the principal amount of such
Debentures held by each Debenture Holder to be redeemed in accordance with
its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Debentures; provided, however, that no
17
such supplemental indenture shall, among other things, (i) reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the Holder of each Debenture so affected, or (ii)
reduce the aforesaid percentage of Debentures, the Holders of which are
required to consent to any such supplemental indenture, without the consent
of the Holder of each Debenture then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of any series at the time
outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any Default or Event of Default with
respect to such series, and its consequences, except a Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series or in respect of a provision which under
the Indenture cannot be modified or amended without the consent of the Holder
of each Outstanding Security of that series affected. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
So long as no Event of Default with respect to the Debentures has
occurred and is continuing, the Company shall have the right at any time
during the term of the Debentures from time to time to extend the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest then accrued and unpaid (together with the interest
thereon at the rate specified for the Debentures to the extent that payment
of such interest is enforceable under applicable law). In the event that the
Company exercises this right, then (a) the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock (other than (i) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock or (ii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company that rank PARI PASSU with or junior to such Debentures, and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee and any similar guarantee issued by the
Company on behalf of holders of preferred securities issued by an issuer
holding Securities issued under the Indenture). Prior to the termination of
any such Extended Interest Payment Period, the Company may further extend the
interest payment period; provided, that such
18
Extended Interest Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or extend beyond
the maturity date of the Debenture. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and unpaid
interest and any additional amount then due, the Company may commence a new
Extended Interest Payment Period, subject to the above requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee
in the City of ___________ and State of ____________ accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
of authorized denominations and for the same aggregate principal amount and
series will be issued to the designated transferee or transferees. No service
charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[This Global Debenture is exchangeable for Debentures in definitive
form only under certain limited circumstances set forth in the Indenture. The
Debentures of this series so issued are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.] As provided
in the Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
19
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $___________ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. RATIFICATION OF INDENTURE.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided.
SECTION 10.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 10.3. GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State.
SECTION 10.4. SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First
Supplemental Indenture and the Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein
or therein.
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SECTION 10.5. COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
PUBLIC SERVICE COMPANY OF COLORADO
By:
-------------------------------------
Name:
Title:
Attest:
By:
- ---------------------------------------
THE BANK OF NEW YORK
as Trustee
By:
-------------------------------------
Name:
Title:
Attest:
By:
- ---------------------------------------
22