Exhibit 4(c)(2)
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PUBLIC SERVICE COMPANY
OF COLORADO
TO
THE BANK OF NEW YORK,
as Trustee
_____________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of __________, 1999
Supplementing the Indenture
dated as of __________, 1999
_____________________________________
Establishing the Securities of Series __
designated __% Senior Notes due ___________
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of ________, 1999, is
between PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation (hereinafter
called the "Issuer" or the "Company"), having its principal office at 0000 00xx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and THE BANK OF NEW YORK, as Trustee
(hereinafter called the "Trustee"), having its principal corporate trust office
at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals of the Issuer
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The Issuer has heretofore executed and delivered an Indenture, dated
as of ________, 1999 (the "Original Indenture", the Original Indenture, as
supplemented by this supplemental indenture being hereinafter referred to as the
"Indenture"), relating to the issuance at any time or from time to time of its
Securities on terms to be specified at the time of issuance. As of the date
hereof, no Securities have been issued under the Indenture. Terms used and not
otherwise defined herein shall (unless the context otherwise clearly requires)
have the respective meanings given to them in the Original Indenture.
The Original Indenture provides in Article Three thereof that, prior
to the issuance of Securities of any series, the form of such Securities and the
terms applicable to such series shall be established in, or pursuant to, the
authority granted in a resolution of the Board of Directors or established in
one or more indentures supplemental thereto.
The Issuer desires by this supplemental indenture, among other things,
to establish the form of the Securities of a series, to be titled ___% Notes due
____ of the Issuer, and to establish the terms applicable to such series,
pursuant to Sections 201, 301 and 901 of the Original Indenture. The Issuer has
duly authorized the execution and delivery of this supplemental indenture.
Article Nine of the Original Indenture provides that the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may from
time to time and at any time amend the Indenture without the consent of
Securityholders for certain purposes enumerated in Section 901 thereof,
including the purposes set forth in subsection (7) of said Section 901.
The execution and delivery of this supplemental indenture by the
parties hereto are in all respects authorized by the provisions of the
Indenture.
All things necessary have been done to make this supplemental
indenture a valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted
and agreed, as follows:
ARTICLE ONE
Establishment of % Notes due
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Section 1.01. The title of the series of the Securities established by
this supplemental indenture shall be __% Notes due ____ of the Issuer
(hereinafter called the "Series __ Notes").
Section 1.02. The Series __ Notes shall be limited to [$___________]
in aggregate principal amount.
Section 1.03. The Series __ Notes may be issued in whole or in part as
one or more Global Securities and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global Securities.
The Depository for such Global Security or Global Securities representing Series
__ Notes may surrender one or more Global Securities representing Series __
Notes in exchange in whole or in part for individual Series __ Notes on such
terms as are acceptable to the Issuer and such Depository and otherwise subject
to the terms of the Indenture.
Section 1.04. The principal of the Series __ Notes shall be payable
on __________.
Section 1.05. The Series __ Notes shall bear interest at the rate of
__% per annum and shall accrue from ___________. The Interest Payment Dates
shall be ____________ and __________ in each year, commencing ___________. The
Regular Record Dates in respect of such Interest Payment Dates shall be
____________ and ___________ in each year, respectively.
Section 1.06. The Corporate Trust Office of The Bank of New York
shall be the place at which the principal of the Series __ Notes shall be
payable. Any interest thereon shall be paid as specified in Section 307 of the
Original Indenture.
Section 1.07. [Interest Payment Deferral Provisions, if any.]
Section 1.08. [Optional Redemption Provisions, if any.]
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Section 1.09. [Mandatory Redemption Provisions, if any.]
Section 1.10. The Series __ Notes shall be issued in denominations of
[$____] and any integral multiple thereof.
Section 1.11. [Original Issue Discount Provisions, if any.]
Section 1.12. [Additional Defaults, if any.]
Section 1.13. Sections 1301 and 1302 of the Indenture shall be
applicable to the Series __ Notes.
Section 1.14. [Currency, if other than U.S. Dollars.]
Section 1.15. [Additional Covenants, if any.]
Section 1.16. The Issuer hereby appoints, or confirms the appointment
of, The Bank of New York as the initial Trustee, Securities Registrar and Paying
Agent, subject to the provisions of the Indenture with respect to resignation,
removal and succession, and subject, further, to the right of the Issuer to
appoint additional agents (including Paying Agents).
Section 1.17. [Exceptions to Business Day Definition, if any.]
Section 1.18. [Any Additional Terms.]
Section 1.19. The Series __ Notes shall be substantially in the form
set forth in Exhibit A hereto, and shall have such further terms as are
reflected in such form, subject to changes in the form thereof made by
the Issuer and acceptable to the Trustee.
ARTICLE TWO
Miscellaneous
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Section 2.01. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
of this supplemental indenture. The Indenture, as supplemented by this
supplemental indenture, is in all respects hereby adopted, ratified and
confirmed.
Section 2.02. This supplemental indenture may be executed in any
number of counterparts, and on separate counterparts, each of which shall be an
original; but such
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counterparts shall together constitute but one and the same instrument.
Section 2.03. If any provision of this supplemental indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, through operation of Section 318(c), such imposed duties
shall control.
Section 2.04. The Article headings herein are for convenience only
and shall not affect the interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the ___ day of ________, 1999.
PUBLIC SERVICE COMPANY OF COLORADO
By: ___________________________
Name:
Title:
THE BANK OF NEW YORK
By: ___________________________
Authorized Signatory
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EXHIBIT A
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Form of ___% Note due ____________
[THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE
DEPOSITORY (REFERRED TO HEREIN) OR A NOMINEE THEREOF AND UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY,
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION (55 XXXXX XXXXXX, XXX
XXXX, XXX XXXX), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
PUBLIC SERVICE COMPANY OF COLORADO
__ % Note due ______________
Interest Rate: ______________
Interest Payment Dates: ______________
Regular Record Dates: ______________
Original Interest Accrual Date: ______________
Stated Maturity: ______________
Registered No. ___________ Principal Amount
CUSIP _____________ $_______________
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado
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(herein called the "Company", which term includes any successor corporation
under the Indenture referred to below) promises to pay to _____________________
or registered assigns the principal sum of____________________ Dollars on
____________________________ the Stated Maturity specified above.
1. Interest.
The Company promises to pay interest on the principal amount hereof at
the Interest Rate per annum shown above from the Original Interest
Accrual Date specified above, or from the most recent Interest Payment
Date to which interest has been paid, semiannually in arrears, on the
Interest Payment Dates specified above, in each year, commencing with
the Interest Payment Date next succeeding the Original Interest
Accrual Date specified above, until the principal hereof is paid or
duly provided for. Interest will be computed on the basis of a 360-
day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest so payable to the person who is the
registered holder hereof at the close of business on the Regular
Record Date for the next Interest Payment Date, except as otherwise
provided in the Indenture and except that interest payable at Maturity
will be paid to the person to whom principal is paid at Maturity.
Payment of principal shall be made upon presentation hereof at the
office of this Paying Agent. The Company will pay principal and
interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money. It may
mail an interest check to the holder's registered address.
3. Agents.
Initially, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Corporate Trust Administration,
will act as Paying Agent, and Securities Registrar. The Company may
change the Paying Agent to provide for more than one such agent. The
Company may appoint one or more Security Registers. The Company or any
Affiliate may act in any such capacity. The Trustee may appoint one
or more Authenticating Agents to authenticate the Securities.
4. Indenture.
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The securities of this series (the "Securities") have been issued
under an Indenture dated as _________, 1999 (the "Indenture") between
the Company and The Bank of New York (the "Trustee," which term
includes any successor trustee under the Indenture). The terms of the
Securities include those stated in the Indenture and in the
Supplemental Indenture creating the Securities and those made part of
the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb). Securityholders are referred to the Indenture,
the Supplemental Indenture and the Act for a statement of such terms.
5. Redemption.
[This Security is not redeemable prior to maturity.] or [This Security
is subject to redemption upon not less than 30 days' notice by first
class mail, in whole at any time or in part from time to time at the
option of the Company at a redemption price equal to the greater of
(i) 100% of the principal amount hereof to be redeemed or (ii) the sum
of the present values of the remaining scheduled payments of principal
and interest thereon discounted to the redemption date on a semiannual
basis (assuming a 360 day year consisting of twelve 30-day months) at
the Treasury Yield plus [____ percent (___%)], plus in each case
accrued and unpaid interest to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term hereof that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term hereof. "Independent
Investment Banker" means [_________________________] or, if such firm
is unwilling or unable to select the Comparable Treasury Issue, one of
the remaining Reference Treasury Dealers appointed by the Trustee
after consultation with the Company.
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"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding such Redemption
date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A)
the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations for such redemption date, or (B) if the
Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at
5:00 p.m. on the third business day preceding such redemption date.
"Reference Treasury Dealer" means (i) any primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer")
designated by the Company.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days before the
redemption date to the holder hereof at his address appearing on the
Security Register.
A notice of redemption shall provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.]
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7. Denominations, Transfer, Exchange.
The Securities of this series are in registered form without coupons
in denominations of _________________ and whole multiples of
_________________. The transfer of this Security may be registered and
this Security may be exchanged as provided in the Indenture. The
Securities Registrar may require a holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any
taxes and fees required by law or the Indenture. The Securities
Registrar need not exchange or register the transfer of any Security
of this series or portion thereof selected for redemption. Also, it
need not exchange or register the transfer of any Security for a
period of 15 days before a selection of Securities of this series to
be redeemed.
8. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
9. Amendments and Waivers.
Subject to certain exceptions, the Indenture may be amended with the
consent of the holders of a majority in outstanding principal amount
of the Securities. Subject to certain exceptions, a default under the
Indenture may be waived with the consent of the holders of a majority
in outstanding principal amount of the Securities.
Without the consent of any Securityholder, the Indenture may be
amended, among other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially
adversely affect the rights of any Securityholder.
10. Restrictive Covenants.
The Securities are unsecured general obligations of the Company
limited to [$500,000,000] principal amount. The Indenture does not
limit the amount of debt the Company may issue thereunder or
otherwise.
11. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
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12. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations hereunder and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest hereon to redemption or
maturity. U.S. Government Obligations are securities backed by the
full faith and credit of the United States of America or certificates
representing an ownership interest in such Obligations.
13. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the outstanding
Securities may declare the principal of all such Securities to be due
and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest or any sinking fund installment) if it determines that
withholding notice is in their interests. The Company must furnish
annual compliance certificates to the Trustee.
14. Trustee Dealings with Company.
The Bank of New York, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are
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part of the consideration for the issue of the Securities.
16. Authentication.
This Security shall not be valid for any purpose and shall not be
entitled to any benefit under the Indenture until authenticated by a
manual signature of the Trustee or any Authenticating Agent.
17. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and
not as tenants in common), CUST (custodian), and U/G/M/A (Uniform
Gifts to Minors Act).
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The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture, including the Supplemental Indenture
which contains the text of this Security in larger type. Requests may be made
to: Public Service Company of Colorado, 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx,
00000 attention: Corporate Secretary.
PUBLIC SERVICE COMPANY OF
COLORADO
By: ____________________________
Chairman of the Board
Authenticated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York,
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as Trustee
Dated:____________________________ By: ____________________________
Authorized Signatory
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
_______________________________________
: :
: :
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(Insert assignee's social security or tax I.D. no.)
_______________________________________
_______________________________________
_______________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date:_________________ Your Signature:___________________
(Sign exactly as your name appears on the other side of this Security)
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