EXHIBIT 1(a)
PUBLIC SERVICE COMPANY OF COLORADO
(a Colorado corporation)
FORM OF
UNDERWRITING AGREEMENT
(FIRST COLLATERAL TRUST BONDS)
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Public Service Company of Colorado, a corporation organized under the
laws of the State of Colorado (the "Company" or "PSCo"), proposes to issue and
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives"), its First
Collateral Trust Bonds of the designation, with the terms and in the aggregate
principal amount specified in Schedule I hereto (the "Bonds") to be issued under
its Indenture, dated as of October 1, 1993 (the "Original Indenture"), from the
Company to U.S. Bank Trust National Association (formerly First Trust of New
York, National Association), as successor trustee (the "Trustee"), as heretofore
supplemented and as it will be further supplemented by a supplemental indenture
creating the Bonds (said Original Indenture, as so supplemented and to be
further supplemented, and said supplemental indenture being hereinafter referred
to as the "Indenture" and the "Supplemental Indenture", respectively). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives," as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties by the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form, including a prospectus, for the registration under the Act of the Bonds,
which registration statement has become effective. Such registration statement
and prospectus may have been amended or supplemented from time to time prior to
the date of this Agreement (which date is set forth in Schedule I hereto). Any
such amendment or supplement was filed with the Commission and any such
amendment has become effective. Each prospectus used before the registration
statement became effective, and any prospectus that omitted the offering terms
that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus". The Company will file with the Commission a prospectus supplement
(the "Prospectus Supplement") relating to the Bonds pursuant to Rule 424 and/or
Rule 434 under the Act. Copies of such registration statement and prospectus,
any such amendment or supplement and all documents incorporated by reference
therein which were filed with the Commission on or prior to the date of this
Agreement have been delivered to you and copies of the Prospectus Supplement
will be delivered to you promptly after it is filed with the Commission. Such
registration statement, as amended prior to the date of this Agreement, and such
prospectus, as amended and supplemented prior to the date of this Agreement and
as supplemented by the Prospectus Supplement, are hereinafter called the
"Registration Statement" and the "Prospectus", respectively. Any reference
herein to the Registration Statement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on or before the date of this Agreement and, if the
Company files any document pursuant to the Exchange Act after the date of this
Agreement and prior to the termination of the offering of the Bonds by the
Underwriters, which documents are deemed to be incorporated by reference into
the Prospectus, the term "Prospectus" shall refer also to said prospectus as
supplemented by the documents so filed from and after the time said documents
are filed with the Commission. There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as exhibits to
the Registration Statement or any documents incorporated by reference therein by
the Act, the Exchange Act or the rules and regulations thereunder which have not
been so filed.
(b) No order preventing or suspending the use of the Prospectus or the
Registration Statement has been issued by the Commission and the Registration
Statement, at the date of this Agreement, complied in all material respects with
the requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and the respective rules and regulations of the
Commission thereunder and did not contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, at the time the
Prospectus Supplement is filed with the Commission and at the Closing Date (as
hereinafter defined), the Prospectus will comply in all material respects with
the Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company makes no representations or warranties
as to (A) that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee
or (B) the information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or
Prospectus. Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 of the Act, complied when so filed in all material
respects with the rules under the Act, and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
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(c) This Agreement has been duly authorized, executed and delivered by
the Company.
(d) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act. The
Prospectus, as of the date hereof, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty as to the information contained in or omitted from the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriters through the Representatives
specifically for inclusion therein.
(e) Deloitte & Touche LLP, which audited the financial statements
incorporated by reference in the Registration Statement, (A) are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder and (B) do not provide to the Company or its subsidiaries
any non-audit services which are prohibited by Section 10A(g) or (h) of the
Exchange Act.
(f) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries incorporated by reference in the
Registration Statement and Prospectus present fairly in all material respects
the financial condition, results of operations, cash flows and changes in
financial position of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the Act and the
Exchange Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). Except as disclosed in or
incorporated by reference in the Registration Statement or Prospectus, neither
the Company nor any of its subsidiaries has any contingent obligations which are
material to the Company and its consolidated subsidiaries considered as one
enterprise.
(g) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to be
so qualified would not have a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(h) The Company has no subsidiaries which would be deemed significant
subsidiaries under Regulation S-X.
(i) Except as may otherwise be reflected in or contemplated by the
Prospectus, since the respective dates as of which information is given therein
(i) there has been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or
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properties of the Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business and (ii) neither
the Company nor any of its subsidiaries has entered into any transactions which
are material to the Company and its subsidiaries considered as one enterprise,
other than in the ordinary course of business; and, except as so reflected or
contemplated, neither the Company nor any of its subsidiaries has any contingent
obligations which are material to the Company and its subsidiaries considered as
one enterprise.
(j) Neither the execution and delivery of this Agreement and the
Supplemental Indenture, the issue and sale of the Bonds, nor the consummation of
any other of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, (i)
the charter or by-laws of the Company or any of its subsidiaries; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which the Company or any of its subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties except, in the case of clause
(ii), any such conflict, breach or violation which would not, individually or in
the aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(k) The issuance and sale by the Company of the Bonds pursuant to this
Agreement have been duly authorized by all necessary corporate action; and, when
issued, authenticated and delivered to the Underwriters pursuant to this
Agreement against payment of the consideration theretofore specified herein, the
Bonds will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
laws or principles of equity affecting generally the enforcement of mortgagees'
and other creditors' rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement of certain remedial
provisions of the Indenture, and will be entitled to the benefits of the
Indenture.
(l) The PSCo 1939 Mortgage (as defined in the Indenture) has been duly
and validly authorized, executed and delivered by the Company and is in due and
proper form and (assuming the PSCo 1939 Mortgage has been duly authorized,
executed and delivered by the trustee thereunder) constitutes a legal, valid and
binding mortgage of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by laws and principles of equity
affecting generally the enforcement of mortgagees' and other creditors' rights,
including without limitation bankruptcy and insolvency laws and state laws which
affect the enforcement of certain remedial provisions of the PSCo 1939 Mortgage;
provided, however, that such state laws will not render the remedies afforded by
the PSCo 1939 Mortgage inadequate for the practical realization of the benefit
of the security provided thereby.
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(m) The issuance and delivery by the Company of the Class A Bonds (as
defined in the Indenture) to be made the basis of the authentication and
delivery of the Bonds (the "Class A Bonds") have been duly authorized by all
necessary corporate action; and when (i) the Class A Bonds have been issued,
authenticated and delivered to the Trustee pursuant to the Indenture and (ii)
the Bonds have been issued, authenticated and delivered to the Underwriters
pursuant to this Agreement against payment of the consideration therefor
specified herein, the Class A Bonds will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as enforcement
thereof may be limited by laws or principles of equity affecting generally the
enforcement of mortgagees' and other creditors' rights, including without
limitation bankruptcy and insolvency laws and state laws which affect the
enforcement of certain remedial provisions of the PSCo Mortgage, and will be
entitled to the benefits of the PSCo Mortgage.
(n) The Indenture has been duly and validly authorized by the Company
and, when duly executed and delivered by the Company, assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
mortgage lien on the properties specifically or generally described or referred
to therein as subject to the lien thereof (except such properties as may have
been sold, exchanged or otherwise disposed of or released from the lien thereof
in accordance with the terms thereof), subject to no liens prior to the lien of
the Indenture other than Permitted Liens (as defined in the Indenture) and the
lien of the PSCo 1939 Mortgage; and the Indenture by its terms effectively
subjects to the lien thereof all property (except property of the kinds
specifically excepted from the lien of the Indenture) acquired by the Company
after the date of execution and delivery of the Indenture and used or to be used
in or in connection with the Electric Utility Business (as defined in the
Indenture), subject to Permitted Liens, the lien of the PSCo 1939 Mortgage, any
lien thereon existing at the time of such acquisition and to any liens for
unpaid portions of the purchase money placed thereon at the time of such
acquisition, and also subject to the provisions of Article Thirteen of the
Indenture, except as enforcement thereof may be limited by laws or principals of
equity effecting generally the enforcement of mortgagees' and other creditors'
rights, including without limitation bankruptcy and insolvency laws and state
laws which affect the enforcement of certain remedial provisions of the
Indenture; provided, however, that such state laws will not render the remedies
afforded by the Indenture inadequate for the practical realization of the
benefit of the security provided thereby.
(o) The PSCo 1939 Mortgage constitutes a first mortgage lien on the
properties specifically or generally described or referred to therein as subject
to the lien thereof, including the shares of stock pledged thereunder (except
such property as may have been sold, exchanged or otherwise disposed of or
released from the lien thereof in accordance with the terms thereof), subject to
no liens prior to the lien of the PSCo 1939 Mortgage other than "permitted
encumbrances" (as defined in the PSCo 1939 Mortgage); and the PSCo 1939 Mortgage
by its terms effectively subjects to the lien thereof all property (except
property of the kinds specifically excepted from the lien of the PSCo 1939
Mortgage) acquired by the Company after the date of the execution and delivery
of the PSCo 1939 Mortgage, subject to "permitted encumbrances", to any lien
thereon existing at the time of such acquisition and to any liens for unpaid
portions of the purchase money placed thereon at the time of such acquisition,
and also subject to the provisions of Article XI of the PSCo 1939 Mortgage and
to certain possible claims of a trustee in bankruptcy and possible claims and
taxes of the federal government.
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(p) The issuance and sale of the Bonds, and the issuance and delivery
of the Class A Bonds, have been duly authorized and approved by an order of The
Public Utilities Commission of the State of Colorado and such order is final and
in full force and effect on the date hereof, the time for appeal therefrom or
review thereof or intervention with respect thereto having expired; no further
approval, authorization, consent or other order of any public board or body is
legally required in connection with the transactions contemplated by this
Agreement, the Indenture or the PSCo 1939 Mortgage, except as may be required
under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Bonds by the Underwriters in the manner contemplated herein
and in the Prospectus.
(q) The Company has good title to the real properties specifically or
generally described or referred to in the Indenture and in the PSCo 1939
Mortgage as subject to the respective liens thereof (except such real property
as may have been sold, exchanged or otherwise disposed of), subject only to (a)
in the case of all such properties, the lien of the PSCo 1939 Mortgage and
"permitted encumbrances" (as defined in the PSCo 1939 Mortgage) and (b) in the
case of such properties which are used or to be used in or in connection with
the Electric Utility Business (whether or not such us is the sole use of such
property) the lien of the Indenture and Permitted Liens.
(r) Other than as set forth or contemplated in the Prospectus as of the
date hereof, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(s) The Company is not, and after giving effect to the offering and sale of
the Bonds and the application of the proceeds thereof as described in the
Prospectus will not be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, without taking account of any exemption arising out of the number of
holders of the Company's securities.
(t) Except as set forth in, or incorporated by reference in, the Prospectus
Supplement, the Company and its subsidiaries (i) are in compliance with any and
all applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are
in compliance with all terms and conditions of any such permits, licenses or
approvals, and (iv) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except
where such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or any such liability would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
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or properties of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Representatives and each other Underwriter, and the
Representatives and each other Underwriter agree, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto,
the respective principal amounts of the Bonds set forth opposite their
respective names in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds shall be
made at the place, date and time specified in Schedule I hereto (or such other
place, date and time not later than eight full business days thereafter as the
Representatives and the Company shall designate), which date and time may be
postponed by agreement between the Representatives and the Company (such date
and time being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks payable in New York
Clearing House (next day) funds or, if so indicated in Schedule I hereto, in
federal (same day) funds. The Bonds will be delivered in definitive registered
form except that, if for any reason the Company is unable to deliver the Bonds
in definitive form, the Company reserves the right, as provided in the
Indenture, to make delivery in temporary form. Any Bonds delivered in temporary
form will be exchangeable without charge for Bonds in definitive form. Unless
otherwise indicated on Schedule I, the Bonds will be registered in the name of
Cede & Co., as nominee of The Depository Trust Company and in the principal
amounts set forth in Schedule II hereto. The Bonds will be made available to the
Representatives for checking in New York, New York, not later than 2:00 p.m.,
New York City time, on the business day preceding the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) With the consent of the Representatives, the Company will cause the
Prospectus Supplement to be filed pursuant to Rule 424 (b) and/or Rule 434 under
the Act and will notify the Representatives promptly of such filing. During the
period for which a prospectus relating to the Bonds is required to be delivered
under the Act, the Company will promptly advise the Representatives (i) when any
amendment to the Registration Statement shall have become effective, (ii) when
any subsequent supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) has been filed, (iii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings for
that purpose. The Company will not file any amendment of the Registration
Statement or supplement to the Prospectus (including documents deemed to be
incorporated by reference into the Prospectus) unless the Company has furnished
to the Representatives a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company will
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use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Bonds is required
to be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations of the Commission thereunder, the Company
promptly, subject to paragraph (a) of this Section 4, will prepare and file an
amendment or supplement to the Prospectus with the Commission or will make a
filing with the Commission pursuant to Section 13 or 14 of the Exchange Act,
which will correct such statement or omission or will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives a consolidated earnings statement (which need not be
audited) of the Company, for a twelve-month period beginning after the date of
the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under
the Act, as soon as is reasonably practicable after the end of such period, but
in any event no later than eighteen months after the "effective date of the
Registration Statement" (as defined in Rule 158(c) under the Act), which will
satisfy the provision of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed
copy of the Registration Statement as originally filed and of each amendment
thereto, including the Form T -1 and all powers of attorney, consents and
exhibits filed therewith (other than exhibits incorporated by reference), and
will deliver to the Representatives conformed copies of the Registration
Statement, the Prospectus (including all documents incorporated by reference
therein) and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such documents,
in each case as soon as available and in such quantities as the Representatives
may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such action as may be required to qualify the Bonds for sale under the
laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution
of the Bonds; provided that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) So long as the Bonds are outstanding, the Company will furnish (or
cause to be furnished) to each of the Representatives, upon request, copies of
(i) all reports to stockholders of the Company and (ii) all reports and
financial statements filed with the Commission or any national securities
exchange.
(g) During the period beginning from the date of this Agreement and
continuing to the Closing Date, the Company will not offer, sell, or otherwise
dispose of any bonds of the
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Company (except under prior contractual commitments which have been disclosed to
you), without the prior written consent of the Representatives, which consent
shall not be unreasonably withheld.
5. Expenses. Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, the Company will pay all costs and
expenses incident to the performance of the obligations of the Company
hereunder, including, without limiting the generality of the foregoing, all
costs, taxes and expenses incident to the issue and delivery of the Bonds to the
Underwriters, all fees and expenses of the Company's counsel and accountants,
all costs and expenses incident to the preparing, printing and filing of the
Registration Statement (including all exhibits thereto), the preliminary
prospectus, the Prospectus (including all documents incorporated by reference
therein) and any amendments thereof or supplements thereto, all costs and
expenses (including fees and expenses of counsel) incurred in connection with
"blue sky" qualifications, the determination of the legality of the Bonds for
investment by institutional investors and the rating of the Bonds, and all costs
and expenses of the printing and distribution of all documents in connection
with this underwriting. Except as provided in this Section 5 and Section 8
hereof, the Underwriters will pay all their own costs and expenses, including
the fees of their counsel and any advertising expenses in connection with any
offer they may make.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Bonds shall be subject, in the discretion of
the Representatives, to the accuracy of the representations and warranties on
the part of the Company contained herein as of the date hereof and the Closing
Date, to the accuracy of the statements of Company officers made in any
certificates given pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement relating to the Bonds shall have been
filed with the Commission pursuant to Rule 424(b) and/or Rule 434 within the
applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction.
(b) The Representatives shall be furnished with opinions, dated the
Closing Date, of Xxx X. Xxxxxxxxxx, Assistant General Counsel of Xcel Energy
Services, Inc., Attorney for the Company, LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., and Xxxxx Day, counsel to the Company, substantially in the form
included as Exhibit A, Exhibit B and Exhibit C, respectively.
(c) The Representatives shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions dated the Closing
Date with respect to the incorporation of the Company, this Agreement, the
validity of the Indenture, the Bonds, the Registration Statement, the Prospectus
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
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(d) The Company shall have furnished to the Representatives a
certificate of the President or any Vice President of the Company, dated the
Closing Date, as to the matters set forth in clause (a) and (h) of this Section
6 and to the further effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
and
(ii) there has been no material adverse change in the
condition of the Company and its subsidiaries taken as a whole,
financial or otherwise, or in the earnings, affairs or business
prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, from that set forth
or contemplated by the Registration Statement or Prospectus Supplement.
(e) The Representatives shall have received letters from Deloitte &
Touche LLP, independent public accountants for the Company (dated the date of
this Agreement and Closing Date, respectively, and in form and substance
satisfactory to the Representatives) advising that (i) they are independent
public accountants as required by the Act and published rules and regulations of
the Commission thereunder, (ii), in their opinion, the consolidated financial
statements and supplemental schedules for the year ended December 31, 2002
incorporated by reference in the Registration Statement or Prospectus and
covered in their opinion filed with the Commission under Section 13 of the
Exchange Act comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations of the Commission thereunder, (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available interim financial statements of the Company, a reading of the minutes
of meetings of the Board of Directors, committees thereof, and of the
Shareholder of the Company since the date of the most recent audited financial
statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter, and on the
basis of such limited review and procedures nothing came to their attention that
caused them to believe that: (a) any material modifications should be made to
any unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus for them
to be in conformity with generally accepted accounting principles or any
unaudited consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement or Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations of the Commission
applicable to Form 10-Q; (b) with respect to the period subsequent to the date
of the most recent financial statements included or incorporated by reference in
the Prospectus and except as set forth in or contemplated by the Registration
Statement or Prospectus, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in the capital stock of
the Company, increases in long-term debt or decreases in stockholders' equity or
net current assets of the Company and its consolidated subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet included or
incorporated in the
10
Prospectus, or for the period from the date of the most recent financial
statements included or incorporated by reference in the Prospectus to such
specified date there were any decreases, as compared with the corresponding
period in the preceding year, in operating revenues, operating income or net
income of the Company and its subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representatives; and (iv)
they have carried out specified procedures performed for the purpose of
comparing certain specified financial information and percentages (which is
limited to financial information derived from general accounting records of the
Company) included or incorporated by reference in the Registration Statement and
Prospectus with indicated amounts in the financial statements or accounting
records of the Company and (excluding any questions of legal interpretation)
have found such information and percentages to be in agreement with the relevant
accounting and financial information of the Company referred to in such letter
in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or the delivery of
the Bonds on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the date hereof, no downgrading shall have occurred,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company's bonds or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
Supplement, and (ii) since the date of this Agreement, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, which are material to the Company and its subsidiaries, and
there shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries otherwise than as set forth or contemplated in the
Prospectus Supplement, the effect of which, in any such case described in clause
(i) or (ii) is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Bonds on the terms and in the manner contemplated by the
Prospectus.
11
(i) No Representative shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of counsel for the
Underwriters is material or omits to state a fact which in the opinion of
counsel for the Underwriters is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Conditions of Company's Obligations. The obligations of the Company
to sell and deliver the Bonds are subject to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, threatened.
(b) The order of the Colorado Public Utilities Commission
referred to in paragraph (1) of Section 1 shall be in full force and
effect.
If any of the conditions specified in this Section 7 shall not have been
fulfilled, this Agreement and all obligations of the Company hereunder may be
cancelled on or at any time prior to the Closing Date by the Company. Notice of
such cancellation shall be given to the Underwriters in writing or by telephone
or facsimile transmission confirmed in writing.
8. Reimbursement of Underwriters' Expenses. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Bonds, including the reasonable fees and disbursements of counsel for the
Underwriters.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act
12
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Bonds as originally filed or in any amendment thereof, or in
the Preliminary Prospectus Supplement or the Prospectus or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading and agrees to
reimburse each such indemnified party for any legal or other expenses as
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damages, liability or action; provided that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
therein and provided further that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior to the
supplementing thereof with the Prospectus Supplement shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Bonds which are the subject thereof if such person was not sent or given a
copy of the Prospectus (but without the documents incorporated by reference
therein) at or prior to the confirmation of the sale of such Bonds to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such Prospectus was
corrected in the Prospectus, provided that the Company shall have delivered the
Prospectus, in a timely manner and in sufficient quantities to permit such
delivery by the Underwriters. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Underwriters but only with reference
to written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the
13
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Representatives in the case of subparagraph (a), representing
the indemnified parties under subparagraphs (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Bonds. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus Supplement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the
14
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Bonds underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation to purchase the
Bonds which it has agreed to purchase hereunder (in this Section called the
"Unpurchased Bonds"), the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Unpurchased Bonds
on the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Representatives do not arrange for the purchase of such
Unpurchased Bonds, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Unpurchased Bonds on such
terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Unpurchased Bonds, or the Company notifies the Representatives that it
has so arranged for the purchase of such Unpurchased Bonds, the Representatives
or the Company shall have the right to postpone the Closing Date for such
Unpurchased Bonds for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Unpurchased Bonds.
15
(b) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Unpurchased Bonds which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of the Bonds,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Bonds which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Bonds which
such Underwriter agreed to purchase hereunder) of the Unpurchased Bonds of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Unpurchased Bonds of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Unpurchased Bonds which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Bonds, as referred
to in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Unpurchased Bonds of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for all Bonds, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) if
a banking moratorium shall have been declared either by Federal, Colorado or New
York State authorities, (iii) if trading in any securities of the Company shall
have been suspended or halted, or (iv) if there shall have occurred any outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a war or national emergency or any other calamity or crisis
the effect of which on the financial markets in the United States is such as to
make it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Bonds on the terms and in
the manner contemplated in the Prospectus.
12. Representations and Indemnities to Survive Delivery. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons within the meaning
of the Act, and will survive delivery of and payment for the Bonds. The
provisions of Sections 5, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and, if
sent to the Representatives, will be mailed, delivered or transmitted and
confirmed to them at their address
16
set forth for that purpose in Schedule 1 hereto or, if sent to the Company, will
be mailed, delivered or transmitted and confirmed to it at 000 Xxxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, attention: Vice President and
Treasurer (fax no.: (000) 000-0000) and confirmed to the General Counsel (fax
no.: (000) 000-0000).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 9 hereof, and no
other person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in counterparts, all
of which, taken together, shall constitute a single agreement among the parties
to such counterparts.
17. Representation of the Underwriters. The Representatives represent
and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
18. Other. Time shall be of the essence for all purposes of this
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington D.C. is open for business.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
PUBLIC SERVICE COMPANY OF COLORADO
By
-----------------------------------
Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[NAME OF REPRESENTATIVE]
By
-----------------------------------
For itself or themselves and as
Representatives of the several
Underwriters, if any, named in
Schedule II to the foregoing
Agreement.
18
SCHEDULE I
Underwriting Agreement dated _____________
Registration Statement No. 333-____________
Representatives and Addresses:
Bonds:
Designation: First Collateral Trust Bonds, Series No. ___ ___% Bonds
due ____
Principal Amount: $___________________
Supplemental Indenture dated as of: ________________
Date of Maturity: _______________________
Interest Rate: ______% per annum, payable __________ and __________
of each year, commencing ____________.
Purchase Price: ______% of the principal amount thereof, plus accrued
interest from ____________ to the date of payment and
delivery.
Public Offering Price: ______% of the principal amount thereof, plus
accrued interest from ____________ to the date
of payment and delivery.
Payment to be made in federal (same day) funds. ____ Yes ____ No
Closing Date and Location:
Office for Delivery of Bonds:
Office for Payment of Bonds:
Office for Checking of Bonds:
SCHEDULE II
NAME AMOUNT
Total.............................................. -----------
EXHIBIT A
FORM OF OPINION OF XXX X. XXXXXXXXXX
RE: $ PRINCIPAL AMOUNT OF FIRST COLLATERAL TRUST BONDS, SERIES NO. % DUE
OF PUBLIC SERVICE COMPANY OF COLORADO, A COLORADO CORPORATION.
Gentlemen:
For the purpose of rendering this opinion, I have examined the
proceedings taken by Public Service Company of Colorado, a Colorado corporation
(the "Company"), with respect to the issue and sale by the Company of $
principal amount of % First Collateral Trust Bonds, Series No. % due (the
"Bonds"). In connection therewith I have participated in the preparation of the
proceedings for the issuance and sale of the Bonds including the Underwriting
Agreement dated , between you and the Company relating to your purchase of
the Bonds (the "Agreement"), and have either participated in the preparation of
or examined the Trust Indenture dated October 1, 1993, from the Company to U.S.
Bank Trust National Association, as successor trustee (the "Trustee"), as
heretofore supplemented and as it will be further supplemented by the
Supplemental Indenture creating the Bonds (said indenture, as so supplemented
and to be further supplemented, being hereafter referred to as the "Indenture").
This letter is furnished to the Underwriters pursuant to Section 6(b) of the
Agreement. Except as otherwise defined herein, terms used in this letter that
are defined in the Agreement are used herein as so defined. I also have
participated in the preparation of or examined the registration statement and
any amendments thereto and the accompanying prospectuses and any supplements
thereto, as filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the Bonds. Whenever the terms "Registration Statement" or
"Prospectus" are used herein, they shall have the respective meanings set forth
in the Agreement. My examination has extended to all statutes, records,
instruments, and documents which I have deemed necessary to examine for the
purposes of this opinion.
I am of the opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Colorado with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
2. The Agreement has been duly authorized, executed and
delivered by the Company;
3. The issuance and sale of the Bonds, and the issuance and
delivery of the Class A Bonds, have been duly authorized and approved
by an order of The Public Utilities Commission of the State of Colorado
and such order is final and in full force and effect on the date
hereof, the time for appeal therefrom or review thereof or intervention
with respect thereto having expired; no further approval,
authorization, consent or other
order of any public board or body in the State of Colorado is legally
required in connection with the transactions contemplated by the
Agreement, the Indenture or the PSCo 1939 Mortgage, except as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Bonds by the Underwriters in the
manner contemplated by the Agreement and in the Prospectus;
4. Neither the execution and delivery of the Agreement, the
issue and sale of the Bonds, nor the consummation of any other of the
transactions therein contemplated, nor the fulfillment of the terms
thereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries, other than the lien
and security interest created by the Bonds, the Indenture and the PSCo
1939 Mortgage, under (i) the charter or by-laws of the Company or any
of its subsidiaries; (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties except, in the case of clause (ii) or (iii), any
such conflict, breach or violation, if it did exist, would not,
individually or in the aggregate, cause a material adverse change in
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business;
5. The facsimile signature of a Senior Vice President or Vice
President of the Company in lieu of his manual signature on the Bonds
and the Class A Bonds and the facsimile signature of the Secretary or
an Assistant Secretary of the Company attesting the corporate seal in
lieu of his manual signature on the Bonds and the Class A Bonds have
been duly and properly authorized by the Board of Directors of the
Company, are not inconsistent with the provisions of the charter or
by-laws of the Company and are valid and effective under the laws of
the State of Colorado; and the facsimile signatures of such officers on
the Bonds and Class A Bonds have the same legal effect as though they
had manually signed and attested the Bonds and the Class A Bonds as
such respective officers;
6. The descriptions in the Registration Statement and
Prospectus of Colorado state statutes and legal and governmental
proceedings are accurate and fairly present the information purported
to be given;
7. There is no pending, or to my knowledge, threatened suit or
proceeding before any court or governmental agency, authority or body
or any arbitration involving the Company or any of its subsidiaries
required to be disclosed in the Prospectus which is not adequately
disclosed in the Prospectus; and
8. The franchises held by the Company, together with the
applicable Certificates of Convenience and Necessity issued by The
Public Utilities Commission of the State of Colorado, give the Company
all necessary authority for the maintenance and operation of its
properties and business as now conducted, and are free from burdensome
restrictions or conditions of an unusual character.
In the course of my participation in the preparation of the Prospectus
I made investigations as to the accuracy of certain of the statements of fact
contained therein, I discussed other matters with officers, employees, and
representatives of the Company, and I examined various corporate records and
data. While I do not pass upon or assume responsibility for, and shall not be
deemed to have independently verified, the accuracy and completeness of the
statements contained in the Prospectus (except as to matters set forth in
paragraphs 6 and 7 above), nothing has come to my attention that would lead me
to believe that the Prospectus as of the date of the Agreement or at the date
hereof contained or contains an untrue statement of material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
My opinions herein are limited to the laws of the State of Colorado.
For purposes of rendering their opinions of even date herewith to the
Underwriters, Xxxxx Day and Xxxxx Xxxxxxxxxx LLP are each entitled to rely
on my opinions in paragraphs 1, 2 and 3 above as to all matters of Colorado law
as if such opinions were addressed to them.
Respectfully submitted,
By
--------------------------------------
Xxx X. Xxxxxxxxxx
Assistant General Counsel
Xcel Energy Services, Inc.
EXHIBIT B
FORM OF OPINION OF LEBOEUF, LAMB, XXXXXX & XXXXXX, L.L.P.
RE: $ PRINCIPAL AMOUNT OF FIRST COLLATERAL TRUST BONDS, SERIES NO. % DUE
OF PUBLIC SERVICE COMPANY OF COLORADO, A COLORADO CORPORATION.
Gentlemen:
We have acted as counsel to Public Service Company of Colorado (the
"Company"), with respect to matters relating to the Indenture dated as of
December 31, 1939 (the "1939 PSCo Mortgage") between the Company and U.S. Bank
Trust National Association (formerly First Trust of New York, National
Association), as successor trustee (the "1939 Trustee"), and the Indenture dated
as of October 1, 1993, as amended and supplemented (the "Indenture"), between
the Company and U.S. Bank Trust National Association (formerly First Trust of
New York, National Association), as successor trustee (the "Trustee") in
connection with the sale by the Company of up to $ aggregate principal
amount of its First Collateral Trust Bonds, Series No. (the "Bonds") on the
basis of an equivalent amount of Class A Bonds (as defined in the Indenture").
This opinion is being delivered pursuant to Section 6(b) of the Underwriting
Agreement, dated (the "Agreement"), between the Company and you as
representatives of the Underwriters (the "Representatives"). Unless otherwise
stated, defined terms used herein shall have the respective meanings given to
them in the Agreement.
We are not general counsel to the Company and our representation of the
Company consists of advising it with respect to corporate and regulatory matters
as to which we have been specifically consulted. We are familiar with the legal
matters pertaining to, and the corporate proceedings of the Company taken with
respect to, the authorization and the issuance and sale by the Company of the
Bonds and the authorization and the issuance and delivery by the Company of the
Class A Bonds. We have examined, among other things, the Prospectus and any
amendment and supplement thereto, the corporate records of the Company, the
Indenture (including the Supplemental Indenture creating the Bonds), the PSCo
1939 Mortgage (including the supplemental indenture thereto under which the
Class A Bonds are being issued), and such other proceedings, papers and
documents as we have deemed relevant for the purposes of rendering the opinions
enumerated below. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to the original documents of all documents submitted to us as copies
and the authenticity of all such latter documents. We have relied as to various
questions of fact upon discussions with officers and representatives of the
Company and the representations and warranties of the Company contained in the
Agreement and upon the certificates of public officials and of officers of the
Company being delivered to you thereunder. With respect to the opinions
expressed in paragraphs 5, 6 and 7 below, we have relied upon information
obtained from public records and from the Company.
On the basis of and subject to the foregoing, and subject to the
further limitations and qualifications set forth below, it is our opinion that:
1. The Indenture has been duly and validly authorized,
executed and delivered by the Company and is in due and proper form and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and binding
mortgage of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, moratorium, fraudulent conveyance
and transfer, and other similar laws affecting the rights of mortgagees
and creditors generally, state laws which affect the enforcement of
certain remedial provisions of the Indenture, and general principles of
equity (regardless of whether such principles are considered in a
proceeding at law or in equity); provided, however, that such state
laws which affect the enforcement of certain remedial provisions of the
Indenture will not, in our opinion, render the remedies afforded by the
Indenture inadequate for the practical realization of the benefit of
the security provided thereby;
2. The Bonds are in due and proper form and the issuance and
sale of the Bonds have been duly authorized by all necessary corporate
action, and when duly executed, authenticated and delivered to the
Underwriters pursuant to the Agreement against payment of the
consideration set forth therein, the Bonds will be legal, valid and
binding obligations of the Company enforceable (subject to the
exceptions and limitations referred to in paragraph 1 hereof) in
accordance with their terms and entitled to the benefits and security
of the Indenture; and the Bonds will be secured equally and ratably
with all other bonds outstanding under the Indenture;
3. The PSCo 1939 Mortgage has been duly and validly
authorized, executed and delivered by the Company and is in due and
proper form and (assuming the PSCo 1939 Mortgage has been duly
authorized, executed and delivered by the 1939 Trustee) constitutes a
legal, valid and binding mortgage of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
moratorium, fraudulent conveyance and transfer, and other similar laws
affecting the rights of mortgagees and creditors generally, state laws
which affect the enforcement of certain remedial provisions of the PSCo
1939 Mortgage and general principles of equity (regardless of whether
such principles are considered in a proceeding at law or in equity);
provided, however, that such state laws which affect the enforcement of
certain remedial provisions of the Indenture will not, in our opinion,
render the remedies afforded by the PSCo 1939 Mortgage inadequate for
the practical realization of the benefit of the security provided
thereby;
4. The Class A Bonds are in due and proper form and the
issuance and delivery of the Class A Bonds have been duly authorized by
all necessary corporate action; and when (a) the Class A Bonds have
been duly executed, authenticated and delivered to the Trustee pursuant
to the PSCo 1939 Mortgage and (b) the Bonds have been duly executed,
authenticated and delivered to the Underwriters pursuant to the
Agreement against payment of the consideration set forth therein, the
Class A Bonds will be legal, valid and binding obligations of the
Company enforceable (subject to the exceptions and limitations referred
to in paragraph 3 hereof) in accordance with their terms and entitled
to the benefits and security of the PSCo 1939 Mortgage; and the Class
A Bonds will be secured equally and ratably with all other bonds
outstanding under the PSCo 1939 Mortgage (except to the extent that any
sinking, amortization, improvement or other fund may afford additional
security for such bonds of any particular series);
5. The Company has good title to the real properties
specifically or generally described or referred to in the Indenture and
in the PSCo 1939 Mortgage as subject to the respective liens thereof
(except such real property as may have been sold, exchanged or
otherwise disposed of), subject only to (a) in the case of all such
properties, the lien of the PSCo 1939 Mortgage and "permitted
encumbrances" (as defined in the PSCo 1939 Mortgage) and (b) in the
case of such properties which are used or to be used in or in
connection with the Electric Utility Business (as defined in the
Indenture) (whether or not such use is the sole use of such property),
the lien of the Indenture and Permitted Liens (as defined in the
Indenture);
6. The Indenture and the filings and recordations made in
connection therewith constitute a mortgage lien on the properties
specifically or generally described or referred to therein as subject
to the lien thereof (except such properties as may have been sold,
exchanged or otherwise disposed of or released from the lien thereof in
accordance with the terms thereof), subject to no liens prior to the
lien of the Indenture other than Permitted Liens and the lien of the
PSCo 1939 Mortgage; and the Indenture by its terms effectively subjects
to the lien thereof all property (except property of the kinds
specifically excepted from the lien of the Indenture by the terms
thereof) acquired by the Company after the date of execution and
delivery of the Indenture and used or to be used in or in connection
with the Electric Utility Business, subject to Permitted Liens, the
lien of the PSCo 1939 Mortgage, any lien thereon existing at the time
of such acquisition and to any liens for unpaid portions of the
purchase money placed thereon at the time of such acquisition, and also
subject to the provisions of Article Thirteen of the Indenture and to
certain possible claims of a trustee in bankruptcy and possible claims
and taxes of the federal government;
7. The PSCo 1939 Mortgage and the filings and recordations
made in connection therewith constitute a first mortgage lien on the
properties specifically or generally described or referred to therein
as subject to the lien thereof (except such property as may have been
sold, exchanged or otherwise disposed of or released from the lien
thereof in accordance with the terms thereof), and, with respect to the
shares of stock pledged thereunder, the PSCo 1939 Mortgage and the
possession by the Trustee of such stock and appropriate stock powers in
the State of New York pursuant to the PSCo 1939 Mortgage is sufficient
to create a security interest under Article 9 of the Uniform Commercial
Code as in effect in the State of New York with respect to such stock
(except such stock as may have been sold, exchanged or otherwise
disposed of or released from the lien thereof in accordance with the
terms thereof), subject to no liens or security interests prior to the
lien and security interest created by the PSCo 1939 Mortgage other than
"permitted encumbrances"; and the PSCo 1939 Mortgage by its terms
effectively subjects to the lien or security interest thereof all
property (except property of the kinds specifically excepted from the
lien of the PSCo 1939 Mortgage by the terms thereof) acquired by the
Company after the date of execution and delivery of the PSCo 1939
Mortgage, subject to "permitted encumbrances", to any lien thereon
existing at the time of such acquisition and also subject to the
provisions of Article XI of the PSCo 1939 Mortgage and to certain
possible claims of a trustee in bankruptcy and possible claims and
taxes of the federal government; and
8. The Bonds, the Indenture, the Class A Bonds, and the PSCo
1939 Mortgage conform as to legal matters to the descriptions of the
terms thereof contained in the Prospectus under the captions
"Description of the First Collateral Trust Bonds" and "Description of
the 1939 Mortgage".
This opinion is limited to the laws of the State of New York and the
State of Colorado and the federal law of the United States of America. This
opinion speaks as of the date hereof and we undertake no responsibility to
advise you of any change in circumstances after the date hereof.
This letter is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Bonds or any other party to which it is not
specifically addressed or to which reliance has not expressly been permitted
hereby. This letter may be relied upon only by the addressees hereof in
connection with the issuance and sale of the Bonds and may not be relied upon
for any other purpose.
Very truly yours,
EXHIBIT C
FORM OF OPINION OF XXXXX DAY
RE: $ PRINCIPAL AMOUNT OF FIRST COLLATERAL TRUST BONDS, SERIES NO. % DUE
OF PUBLIC SERVICE COMPANY OF COLORADO, A COLORADO CORPORATION.
Ladies and Gentlemen:
We have acted as special counsel to Public Service Company of Colorado,
a Colorado corporation (the "Company"), in connection with the sale by the
Company pursuant to the Underwriting Agreement, dated ________________ (the
"Agreement"), by and among the Company and the Underwriters named on Schedule I
thereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), of $__________ aggregate principal amount of ______% First
Collateral Trust Bonds, Series ______ due _____, of the Company (the "Bonds")
being issued on this date under the Company's Indenture, dated as of October 1,
1993, to U.S. Bank Trust National Association, as successor trustee (the
"Trustee"), as heretofore supplemented and as it is being further supplemented
by a supplemental indenture creating the Bonds (said Indenture, as so
supplemented, being hereafter referred to as the "Indenture"). This letter is
furnished to the Underwriters pursuant to Section 6(b) of the Agreement. Except
as otherwise defined herein, terms used in this letter that are defined in the
Agreement are used herein as so defined.
In connection with the opinions expressed herein, we have examined such
documents and records, including an examination of originals or copies certified
or otherwise identified to our satisfaction, and matters of law as we have
deemed necessary for purposes of this opinion. Based upon the foregoing and
subject to the further assumptions, qualifications and limitations stated
herein, we are of the opinion that:
1. To the extent governed by New York law, the Agreement has been duly
executed and delivered by the Company.
2. The Company is not, and after giving effect to the offering and sale
of the Bonds and the application of the proceeds thereof as described in the
Prospectus will not be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, without taking account of any exemption arising out of the number of
holders of the Company's securities.
3. Assuming that the issuance and sale of the Bonds, and the issuance
and delivery of the Class A Bonds, have been duly authorized and approved by an
order of The Public Utilities Commission of the State of Colorado and such order
is final and in full force and effect on the date hereof, and that the time for
appeal therefrom or review thereof or intervention with respect thereto have
expired, no approval, authorization, consent or order of any public board or
body under the laws of the United States of America is legally required in
connection with the transactions contemplated by the Agreement, the Indenture or
the PSCo 1939 Mortgage.
4. The descriptions in the Registration Statement and the Prospectus of
United States federal statutes are accurate and fairly present the information
purported to be given.
We have not independently verified and are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness, except
and to the extent as set forth in paragraph 4 above, of the information included
in the Prospectus. We have participated in the preparation of the Prospectus.
From time to time in connection therewith, we have had discussions with
officers, directors and employees of the Company and Xcel Energy Inc., a
Minnesota corporation and the parent corporation of the Company, with
representatives of Deloitte & Touche LLP, the independent accountants who
examined certain of the financial statements of the Company, and with the
Underwriters and counsel to the Underwriters. Based upon our participation and
discussions described above, we have no reason to believe that the Prospectus,
as of its date or the date hereof, included or includes any untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that we express no view as to (i)
financial statements, financial schedules and other financial data included or
incorporated by reference in the Prospectus or (ii) the information referred to
under the caption "Independent Accountants" as having been included or
incorporated by reference in the Prospectus and covered by the report of
Deloitte & Touche LLP).
The opinions set forth above are subject to the following assumptions,
qualifications and limitations:
We have assumed, for purposes of the opinions expressed herein, the
legal capacity of all natural persons executing documents, the genuineness of
all signatures, the authenticity of original and certified documents and the
conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies. For the purposes of the opinions and views
expressed herein, we also have assumed that each of the Underwriters and the
Trustee has duly authorized, executed and delivered the documents to which each
of them is a party and that each of such documents is the valid, binding and
enforceable obligation of each of the Underwriters and the Trustee,
respectively.
As to any facts relevant to the opinions expressed herein, we have
relied upon and assume the accuracy of the representations and warranties of the
Underwriters contained in the Agreement, and compliance on the part of the
Underwriters with their covenants and agreements contained therein.
We express no opinion as to the validity, binding effect or
enforceability of any provision in any document:
(i) relating to indemnification, contribution or exculpation in
connection with violations of any securities laws or statutory duties or public
policy, or in connection with willful, reckless or unlawful acts or gross
negligence of the indemnified or exculpated party or the party receiving
contribution;
(ii) relating to choice of governing law to the extent that the
enforceability of any such provision is to be determined by any court other than
a court of the State of New York; or
(iii) requiring or relating to payment of interest (or discount or
equivalent amounts) or any premium payment at a rate or in an amount, after the
maturity or after or upon acceleration of the respective liabilities evidenced
or secured thereby or after or during the continuance of any default, event of
default or other circumstance, or upon prepayment, that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a
penalty or a forfeiture.
Our opinions as to validity, binding effect or enforceability are
subject to the effect of generally applicable rules of law that:
(i) limit the availability of a remedy in certain circumstances when
another remedy has been elected;
(ii) may, where less than all of a contract may be unenforceable, limit
the enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange; or
(iii) govern and afford judicial discretion regarding the determination
of damages and entitlement to attorneys' fees and other costs.
Our examination of matters of law in connection with the opinions
expressed herein have been limited to, and accordingly our opinions herein are
limited to, the federal securities laws of the United States of America and the
laws of the State of New York, in each case as currently in effect. In
connection with our opinions set forth herein, we express no opinion as to any
matters of, or that relate to, the laws of any other jurisdiction, including the
laws of the State of Colorado. To the extent such opinions relate to any
provision of Colorado law, we direct you to the opinion dated the date hereof of
Xxx X. Xxxxxxxxxx, Esq., Assistant General Counsel of Xcel Energy Services,
Inc. and a member of the Colorado bar, which opinion previously has been
delivered to you.
It should be understood that the scope of our representation does not
include providing legal services to any financial institution or financial
institution-affiliated party with regard to any matter (a "financial
institutions regulatory matter") the resolution of which requires reference to
any provision of Title 12 of the United States Code as in effect from time to
time, the policies, procedures, guidelines or practices of any state regulator
with respect to any such federal or state law or regulation, or any other
federal or state law or regulation or regulatory policy, procedure or practice
expressly applicable to financial institutions or, in their capacities as such,
financial institution-affiliated parties or, if not expressly applicable, then
to the extent applicable by implication or actually applied to a financial
institution or financial institution-affiliated party. We express no opinion
regarding the compliance by any Underwriters with any such financial
institutions regulatory matter.
This letter is furnished by us, as special counsel to the Company, to
you, as the Representatives, solely for the benefit of the Underwriters and
solely with respect to the purchase of the Bonds from the Company by the
Underwriters upon the understanding that we are not hereby assuming any
professional responsibility to any other person whatsoever, and that this letter
is not to be used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
