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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
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
2.6. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.7 No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.8 Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.9 Appointment of Agents. . . . . . . . . . . . . . . . . . . . . . . . .6
III REDEMPTION OF THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . .7
3.1. Special Event Redemption . . . . . . . . . . . . . . . . . . . . . . .7
3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . .8
IV EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . . . . . . .9
4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . .9
4.2. Notice of Extension. . . . . . . . . . . . . . . . . . . . . . . . . .9
4.3. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . 10
V EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1. Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2. Payment Upon Resignation or Removal. . . . . . . . . . . . . . . . . 11
VI SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.1. Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VII COVENANT TO LIST ON EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . 12
7.1. Listing on an Exchange . . . . . . . . . . . . . . . . . . . . . . . 12
VIII FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.1. Form of Debenture. . . . . . . . . . . . . . . . . . . . . . . . . . 12
IX ORIGINAL ISSUE OF DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . 21
9.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . 21
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X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.1. Ratification of Indenture. . . . . . . . . . . . . . . . . . . . . . 21
10.2. Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . 21
10.3. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.4. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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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 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 (the
"Company"), and The Bank of New York, a New York banking corporation, having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10081, 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 ___% ____________________ (the "Preferred Securities"),
representing preferred 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 ___% 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, to be substantially in the form set forth in
Article VIII hereof, subject to changes in the form thereof made by the Company
and acceptable to the Trustee.
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
$[ ] or integral multiples of $[ ]. The Place of Payment for the Debentures
issued in certificated form where the transfer of such Debentures will be
registrable and where such Debentures will be exchangeable for Debentures
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bearing identical terms and provisions shall be the Corporate Trust Office 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 to the Company in writing 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.
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(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]
[semi-annually], payable (subject to the provisions of Article IV) [quarterly]
[semi-annually] in arrears on [March 31, June 30, September 30 and December 31]
[the ___ day of _____ and _____] of each year (each, an "Interest Payment Date,"
commencing on _____________), 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
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Debenture, the Company may select a regular record date for such interest
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] [semi-annual] period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in such a [90-day]
[180-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.
SECTION 2.6. REDEMPTION.
The Debentures are not subject to redemption at the option of the
Holder and are subject to redemption solely at the option of the Company or
otherwise as provided in Article III hereof.
SECTION 2.7 NO SINKING FUND.
The Debentures shall not be entitled to the benefit of any sinking
fund or analogous provision.
SECTION 2.8 DEPOSITORY.
The Depository Trust Company (or its nominee) shall act as the initial
Depository for any Global Debenture which may be issued pursuant to this First
Supplemental Indenture.
SECTION 2.9 APPOINTMENT OF AGENTS.
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The Company hereby appoints, or confirms the appointment of, The Bank
of New York as the initial Trustee, Securities Registrar and Paying Agent with
respect to the Debentures, subject to the provisions of the Indenture with
respect to resignation, removal and succession, and subject, further, to the
right of the Company to appoint additional agents (including Paying Agents).
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 but not 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
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
7
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 _________, ____,
upon not less than 30 days nor more than 60 days notice to the Holder of the
Debentures [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").] [at the following redemption prices (expressed
as a percentage of the principal amount of the Debentures being redeemed) plus
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the redemption date (in any such case, an
"Optional Redemption Price"), if redeemed during the 12 month period commencing
on __________ of the years set forth below:
Period Redemption Price
------ ----------------
2008 104.665%
2009 104.199
2010 103.732
2011 103.266
2012 102.799
2013 102.333
2014 101.866
2015 101.400
2016 100.933
2017 100.467
and at 100% on or after __________, 2018]
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
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amount 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.
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 xxxxxxxx] [00 consecutive semi-annual periods] (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]
[semi-annually for each semi-annual period] 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 xxxxxxxx] [00 consecutive semi-annual
periods] 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.
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
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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] [semi-annual period] 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 xxxxxxxx] [00 semi-annual periods] 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,
(ii) any declaration of a dividend in connection with the implementation of a
shareholder rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) purchases of its common stock related to the issuance of such stock under
any of the Company's benefit plans for its directors, officers or employees,
(iv) obligations under any dividend reinvestment plan or stock purchase plan of
the Company, or (v) 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).
10
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.
11
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 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
12
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) 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. ____________________
$_______________________
CUSIP No. ______________
13
PUBLIC SERVICE COMPANY OF COLORADO
___% DEFERRABLE INTEREST SUBORDINATED DEBENTURE
DUE _______
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________ Dollars
($___________) 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] [semi-annually on the ___ day
of _____ and _____] of each year commencing _____________, 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] [semi-annually]. 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
Company 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
14
at such address as shall appear in the Security Register. 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.
15
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
16
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 the Optional Redemption Price
(as defined in the Indenture). 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 but not 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.
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
17
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 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
18
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] [10 consecutive
semi-annual periods] (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 any dividend on, make any 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, (ii) any declaration of a dividend in connection with the implementation
of a shareholder rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) purchases of its common stock related to the issuance of such stock under
any of the Company's benefit plans for its directors, officers or employees,
(iv) obligations under any dividend reinvestment plan or stock purchase plan of
the Company, or (v) 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
19
such Extended Interest Payment Period, the Company may further extend the
interest payment period; provided, that such Extended Interest Payment Period,
together with all such previous and further extensions thereof, may not exceed
[20 consecutive xxxxxxxx] [00 consecutive semi-annual periods] 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 $__ 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.
20
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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 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
21
and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
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.]
22
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:
THE BANK OF NEW YORK
as Trustee
By: ______________________________________
Name:
Title:
23
