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Guarantee Agreement
between
PUBLIC SERVICE COMPANY OF COLORADO
(as Guarantor)
and
The Bank of New York
(as Preferred Guarantee Trustee)
Dated as of
__________, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application . . . . . . . . . . . . . . . .4
SECTION 2.02. List of Holders. . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.03. Reports by the Preferred Guarantee Trustee . . . . . . . . . . .4
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee. . . . . . . . .4
SECTION 2.05. Evidence of Compliance with Conditions Precedent . . . . . . . .5
SECTION 2.06. Events of Default; Waiver. . . . . . . . . . . . . . . . . . . .5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . . . . . . . . . .5
SECTION 2.08. Conflicting Interests. . . . . . . . . . . . . . . . . . . . . .6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee . . . . . .6
SECTION 3.02. Certain Rights of Preferred Guarantee Trustee. . . . . . . . . .7
ARTICLE IV PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . .9
SECTION 4.02. Appointment, Removal and Resignation of the Preferred
Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V GUARANTEE
SECTION 5.01. Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand. . . . . . . . . . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.06. Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.07. Independent Obligations. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI SUBORDINATION
SECTION 6.01. Ranking. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.02. PARI PASSU Guarantees. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII TERMINATION
SECTION 7.01. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE VIII INDEMNIFICATION
SECTION 8.01. Exculpation. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 8.02. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 14
SECTION 9.02. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 9.04. Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9.05. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9.06. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 16
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CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee of
1939, as amended Agreement
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310(a)......................................................... 4.01(a)
310(b)......................................................... 4.01(c), 2.08
310(c)......................................................... Inapplicable
311(a)......................................................... 2.02(b)
311(b)......................................................... 2.02(b)
311(c)......................................................... Inapplicable
312(a)......................................................... 2.02(a)
312(b)......................................................... 2.02(b)
313............................................................ 2.03
314(a)......................................................... 2.04
314(b)......................................................... Inapplicable
314(c)......................................................... 2.05
314(d)......................................................... Inapplicable
314(e).........................................................1.01, 2.05, 3.02
314(f)......................................................... 2.01, 3.02
315(a)......................................................... 3.01(d)
315(b)......................................................... 2.07
315(c)......................................................... 3.01
315(d)......................................................... 3.01(d)
316(a).........................................................1.01, 2.06, 5.04
316(b)......................................................... 5.03
316(c)......................................................... 8.02
317(a)......................................................... Inapplicable
317(b)......................................................... Inapplicable
318(a)......................................................... 2.01(b)
318(b)......................................................... 2.01
318(c)......................................................... 2.01(a)
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* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of __________, 1998, is executed and delivered by Public Service Company
of Colorado, a Colorado corporation (the "Guarantor"), to The Bank of New
York, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of PSCO Capital Trust I, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________, 1998 among the Trustees named
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing $___________ aggregate liquidation amount of its ___% Trust Originated
Preferred Securities (liquidation amount of $[ ] per preferred security)
(the "Preferred Securities") representing undivided beneficial interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the sale by the Issuer of
its Common Securities, will be used to purchase the Debentures (as defined in
the Declaration) of the Guarantor which will be deposited with The Bank of
New York, as Property Trustee under the Declaration, as Trust Property (as
defined in the Declaration);
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical
terms to this Preferred Securities Guarantee for the benefit of the holders
of the Common Securities (as defined herein), except that if an event of
default (as defined in the Indenture) has occurred and is continuing, the
Guarantee Payments under the Common Securities Guarantee are subordinated to
the rights of Holders of Preferred Securities to receive Guarantee Payments
under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders from time to time of the
Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Preferred Securities
Guarantee, each of the terms set forth below shall, unless the context
otherwise requires, have the following meaning. Each capitalized or otherwise
defined term used but not otherwise defined herein shall have the meaning
assigned to such terms in the Declaration as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the common securities representing undivided
beneficial interests in the assets of the Issuer and having the rights
provided therefor in the Declaration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" shall have the meaning specified in Section 2.06 (a).
"Guarantee Payments" means the following payments, without duplication,
with respect to the Preferred Securities, to the extent not paid or made by
or on behalf of the Issuer pursuant to the Declaration or by the Guarantor
pursuant to the Indenture: (i) any accumulated and unpaid Distributions
required to be paid on the Preferred Securities, to the extent the Issuer
shall have funds available therefor, (ii) the redemption price (the
"Redemption Price") and all accrued and unpaid Distributions to the date of
redemption to the extent the Issuer shall have funds available therefor, and
(iii) upon a voluntary or involuntary dissolution and liquidation of the
Issuer (other than in connection with a Distribution of Debentures to Holders
of such Preferred Securities or the redemption of all such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount of
$[ ] per Preferred Security plus all accrued and unpaid Distributions on
the Preferred Securities to the date of payment, to the extent the Issuer
shall have funds available therefor and (b) the amount of assets of the
Issuer remaining available for Distribution to Holders of Preferred
Securities upon a dissolution and liquidation of the Issuer (in either case,
the "Liquidation Distribution"). If an event of default under the Indenture
has occurred and is continuing, the rights of holders of the Common
Securities to receive payments under the Common Securities Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments.
"Holder" means a Person in whose name a Preferred Security is registered
in the Securities Register; provided, however, that in determining whether
the holders of the requisite percentage of Preferred Securities have given
any request, notice, consent or waiver hereunder, "Holder"
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shall not include the Guarantor, the Preferred Guarantee Trustee or any
Affiliate of the Guarantor or the Preferred Guarantee Trustee.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of _________, 1998, as amended
or supplemented from time to time, between Public Service Company of Colorado
and The Bank of New York, as trustee thereunder.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holders of more
than 50% of the aggregate liquidation amount of all then outstanding
Preferred Securities issued by the Issuer.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, or any Senior or Executive Vice President and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the
Guarantor.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Guarantee Trustee" means The Bank of New York, until a
Successor Preferred Guarantee Trustee (as defined below) has been appointed
and has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any Vice President, any Assistant Vice President, any Trust Officer
or Assistant Trust Officer or any other officer of the Corporate Trust
Department of the Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act
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of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939, as so
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If, and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.02. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Preferred Guarantee Trustee (i) semiannually, on or before January 15 and
July 15 of each year, a list, in such form as the Preferred Guarantee Trustee
may reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery thereof,
and (ii) at such other times as the Preferred Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is
in the possession or control of the Guarantor and is not identical to a
previously supplied List of Holders or has not otherwise been received by the
Preferred Guarantee Trustee in its capacity as such. The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of
a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.03. Reports by the Preferred Guarantee Trustee. Within 60
days after May 31 of each year, the Preferred Guarantee Trustee shall provide
to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313
of the Trust Indenture Act. The Preferred Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and
information, if any, as required by Section 314 of the Trust Indenture Act
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form and manner and at the times required by Section 314 of the
Trust Indenture Act.
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SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Preferred Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Each Officers' Certificate and
Opinion of Counsel delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
or Opinion of Counsel has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate or Opinion of Counsel and upon which the statements contained
therein are based;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
SECTION 2.06. Events of Default; Waiver.
(a) An Event of Default means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee;
provided, that except with respect to a default resulting from a failure to
pay any Guarantee Payment, the Guarantor shall have received notice of such
default and shall not have cured such default within 60 days after receipt of
such notice.
(b) The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Preferred Securities
Guarantee, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known to the Preferred
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of a default in the payment of a
Guarantee Payment, the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as the Board of Directors, the executive
committee or a trust committee of
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directors and/or Responsible Officers of the Preferred Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or a Responsible Officer charged with the
administration of the Declaration shall have obtained written notice, of such
Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration shall be deemed
to be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders, and the Preferred Guarantee
Trustee shall not transfer this Preferred Securities Guarantee to any Person
except a Holder exercising his or her rights pursuant to Section 5.04(iv) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee
upon acceptance by such Successor Preferred Guarantee Trustee of its
appointment hereunder and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall
be read into this Preferred Securities Guarantee against the Preferred
Guarantee Trustee. In case an Event of Default has occurred and is
continuing (and has not been cured or waived pursuant to Section 2.06), the
Preferred Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Preferred Securities Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would exercise
or use in the conduct of his or her own affairs.
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(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof or
of the Trust Indenture Act are specifically required to be furnished
to the Preferred Guarantee Trustee, the Preferred Guarantee Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Preferred Securities
Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Preferred
Guarantee Trustee, unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in liquidation
amount of the Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Preferred
Guarantee Trustee, or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall require
the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or reasonable
indemnity against such risk or liability is not reasonably assured to it.
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SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting to
take any action hereunder, the Preferred Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request from the Preferred Guarantee Trustee, shall be
promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee may consult with legal counsel,
and the written advice or Opinion of Counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal counsel may be
legal counsel to the Guarantor or any of its Affiliates and may be one of
its employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(v) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Preferred Guarantee Trustee such
reasonable indemnity as would satisfy a reasonable person in the position
of the Preferred Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction; provided that, nothing
contained in this Section 3.02(a)(v) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Preferred Securities Guarantee.
(vi) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture,
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note, other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(vii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, and the Preferred Guarantee
Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder.
(viii) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and
the signature of the Preferred Guarantee Trustee or its agents alone shall
be sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's or its agent's
taking such action.
(ix) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (A) may
request instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Preferred Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and authority.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least fifty
million U.S. dollars
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($50,000,000), and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act. In determining whether the Preferred Guarantee Trustee has a
"conflicting interest" within the meaning of Section 310(b)(1) of the Trust
Indenture Act, the provisions contained in the proviso to Section 310(b)(1)
of the Trust Indenture Act and the Preferred Guarantee Trustee's Statement of
Eligibility on Form T-1 shall be deemed incorporated herein.
SECTION 4.02. Appointment, Removal and Resignation of the Preferred
Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed until a new,
eligible Preferred Guarantee Trustee has been appointed (a "Successor
Preferred Guarantee Trustee") and has accepted such appointment and assumed
the applicable obligations hereunder by written instrument executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed
by the Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by instrument in
writing executed by such Successor Preferred Guarantee Trustee and delivered
to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Preferred
Guarantee Trustee.
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ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders of the Outstanding Preferred Securities
the Guarantee Payments (without duplication of amounts theretofore paid by or
on behalf of the Issuer pursuant to the Declaration or by the Guarantor
pursuant to the Indenture), as and when due, regardless of any defense, right
of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Preferred Securities Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Preferred Guarantee
Trustee, the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from an Extension Period on the Debentures as so
provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
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(e) any invalidity of, or detect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of
a guarantor, it being the intent of this Section 5.03 that the obligations of
the Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Preferred Securities Guarantee will be deposited with the
Preferred Guarantee Trustee to be held for the benefit of the Holders; (ii)
the Preferred Guarantee Trustee has the right to enforce this Preferred
Securities Guarantee on behalf of the Holders; (iii) the Holders of a
Majority in liquidation amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee in respect of this Preferred
Securities Guarantee or exercise or direct the exercise of any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a legal proceeding against
the Preferred Guarantee Trustee, the Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Preferred Securities
Guarantee creates a guarantee of payment and not of collection (i.e., the
guaranteed party may institute a legal proceeding directly against the
Guarantor to enforce its rights under the Preferred Securities Guarantee
without first instituting a legal proceeding against any other person or
entity). This Preferred Securities Guarantee will not be discharged except
by payment of the Guarantee Payments in full to the extent not previously
paid or upon Distribution to the Holders of the Preferred Securities of the
corresponding series of Debentures as provided in the Declaration.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all
(if any) rights of the Holders against the Issuer in respect of any amounts
paid to the Holders by the Guarantor under this Preferred Securities
Guarantee and shall have the right to waive payment by the Issuer pursuant to
Section 5.01; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Preferred Securities Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Preferred Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
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SECTION 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Preferred Securities Guarantee notwithstanding
the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Ranking. This Preferred Securities Guarantee shall
constitute an unsecured obligation of the Guarantor and shall rank (a)
subordinate and junior in right of payment to all general liabilities of the
Guarantor, (b) PARI PASSU with the senior most preferred stock now or
hereafter issued by the Guarantor and with any guarantee now or hereafter
issued by the Guarantor in respect of preferred stock of any affiliate of the
Guarantor and (c) senior to the Guarantor's common stock.
SECTION 6.02. PARI PASSU Guarantees. This Preferred Securities
Guarantee shall rank PARI PASSU with any similar Preferred Securities
Guarantees issued by the Guarantor on behalf of the holders of trust
preferred securities issued by other PSCO Trusts.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Preferred Securities Guarantee shall
terminate and be of no further force and effect upon full payment of the
Redemption Price or Liquidation Distribution for the Preferred Securities or
upon Distribution of the Debentures to the Holders of the Preferred
Securities. This Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any Holder of the
Preferred Securities must restore payment of any sums paid under the
Preferred Securities or this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except
that an Indemnified Person shall be liable
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for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Preferred Securities might
properly be paid.
SECTION 8.02. Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against
any loss, damage or claim incurred by such Indemnified Person by reason of
any act or omission performed or omitted by such Indemnified Person in good
faith in accordance with this Preferred Securities Guarantee and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Preferred Securities
Guarantee, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.02(a).
(c) The obligation to indemnify as set forth in this Section 8.02 shall
survive the termination of the Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. The Guarantor may not consolidate with or merge with or into,
or sell, convey, transfer or lease its properties and assets as an entirety
or substantially as an entirety (either in one transaction or a series of
transactions) to, any Person unless permitted under Article Eight of the
Indenture. In connection with a consolidation, merger or sale involving the
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Guarantor that is permitted under Article Eight of the Indenture the Person
formed by or surviving such consolidation or merger or to which such sale,
conveyance, transfer or lease shall have been made, if other than the
Guarantor, shall expressly assume all of the obligations of the Guarantor
hereunder and under the Declaration.
SECTION 9.02. Amendments. Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this Preferred
Securities Guarantee may only be amended with the prior approval of the
Holders of a Majority in liquidation amount of the Preferred Securities
(excluding any Preferred Securities held by the Guarantor or an Affiliate
thereof). The provisions of Article VI of the Declaration concerning
meetings of the Holders shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing and
delivered, telecopied or mailed by first class mail, postage prepaid, as
follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Public Service Company of Colorado
1225 17th Street
Denver, CO 80202-5533
Facsimile No: [ ]
Attention: [ ]
(b) if given to the Issuer, in care of the Preferred Guarantee
Trustee, at the Issuer's (and the Preferred Guarantee Trustee's) address
set forth below or such other address as the Preferred Guarantee Trustee on
behalf of the Issuer may give notice to the Holders:
PSCO Capital Trust I
1225 17th Street
Denver, CO 80202-5533
Facsimile No: [ ]
Attention: [ ]
with a copy to:
The Bank of New York
101 Barclay Street, 21st Floor
New York, NY 10286
Facsimile No: (212) 815-5915
Attention: Walter Gitlin
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(c) if given to any Holder, at the address set forth in the
Securities Register.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.04. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders and is not separately transferable from the
Preferred Securities.
SECTION 9.05. Interpretation. In this Preferred Securities Guarantee,
unless the context otherwise requires:
(a) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
(b) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee unless otherwise specified;
(c) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires;
(d) a reference to the singular includes the plural and vice versa;
and
(e) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.06. Governing Law. THIS PREFERRED SECURITIES GUARANTEE SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
PUBLIC SERVICE COMPANY OF COLORADO,
as Guarantor
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Preferred Guarantee Trustee
By:
-------------------------------------
Name:
Title:
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