Exhibit 4.2
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PUBLIC SERVICE COMPANY
OF COLORADO
TO
THE BANK OF NEW YORK,
AS TRUSTEE
-------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 15, 1999
Supplementing the Indenture
dated as of July 1, 1999
------------------------------------
Establishing the Securities of Series A
Senior Notes 6 7/8% due 2009
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 15, 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
The Issuer has heretofore executed and delivered an Indenture, dated as of
July 1, 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 Series A Senior
Notes 6 7/8% due 2009 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 SERIES A SENIOR NOTES 6 7/8% DUE 2009
Section 1.01. The title of the series of the Securities established by this
supplemental indenture shall be Series A Senior Notes 6 7/8 % due 2009 of the
Issuer (hereinafter called the "Series A Notes").
Section 1.02. The Series A Notes shall be limited to $200,000,000 in
aggregate principal amount.
Section 1.03. The Series A 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
A Notes may surrender one or more Global Securities representing Series A Notes
in exchange in whole or in part for individual Series A 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 A Notes shall be payable on July
15, 2009.
Section 1.05. The Series A Notes shall bear interest at the rate of 6 7/8%
per annum and shall accrue from July 16, 1999. The Interest Payment Dates shall
be January 15 and July 15 in each year, commencing January 15, 2000. The Regular
Record Dates in respect of such Interest Payment Dates shall be January 1 and
July 1 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 A Notes shall be payable. Any
interest thereon shall be paid as specified in Section 307 of the Original
Indenture.
Section 1.07. The Series A Notes are 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
-2-
twelve 30-day months) at the Treasury Yield plus 15 basis points, 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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.
"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 the Series A Notes in part only, a new Series
A Note or Notes of the same series for
-3-
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon the cancellation hereof.
Section 1.08. Notice of redemption will be mailed at least 30 days before
the redemption date to the Holder thereof 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.
Section 1.09. The Series A Notes shall be issued in denominations of $1000
and any integral multiple thereof.
Section 1.10. Sections 1301 and 1302 of the Indenture shall be applicable
to the Series A Notes.
Section 1.11. 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 1.12. The Series A 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
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 counterparts shall together constitute but one and the same instrument.
-4-
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.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the 15th day of July, 1999.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Authorized Signatory
-6-
EXHIBIT A
Form of Series A Senior Note 6 7/8% due 2009
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 DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY 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 DEPOSITORY 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
Series A Senior Note 6 7/8 % due 2009
Interest Rate: 6 7/8%
Interest Payment Dates: January 15 and July 15
Regular Record Dates: January 1 and July 1
Original Interest Accrual Date: January 16,1999
Stated Maturity: July 15,2009
CUSIP No. ___________ Principal Amount
$200,000,000
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company",
which term includes any successor
A-1
corporation under the Indenture referred to below) promises to pay to
_____________________________________ or registered assigns the principal sum of
Two Hundred Million Dollars on July 15, 2009, 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 Registrars. 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.
The securities of this series (the "Securities") have been issued
under an Indenture dated as of July 1, 1999
A-2
(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 Trust
Indenture Act of 1939, as amended, for a statement of such terms.
5. Redemption.
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 15
basis points, 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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.
"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
A-3
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.
7. Denominations, Transfer, Exchange.
The Securities of this series are in registered form without coupons
in denominations of $1000 and whole multiples of $1000. 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
A-4
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 the mailing of a notice of redemption of Securities of
this series selected 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 $200,000,000 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.
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
A-5
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) 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 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.
A-6
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).
A-7
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.
[Corporate Seal] PUBLIC SERVICE
COMPANY OF COLORADO
By: _______________________
name:
title:
Attest:
By:__________________
name:
title:
Authenticated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: July 16, 1999 By: ____________________________
Authorized Signatory
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
---------------------------------------
---------------------------------------
(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)
A-9
