Exhibit 1.1
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PUBLIC SERVICE COMPANY OF COLORADO
$200,000,000
SENIOR DEBT SECURITIES
UNDERWRITING AGREEMENT
Dated: July 13, 1999
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PUBLIC SERVICE COMPANY OF COLORADO
$200,000,000
Senior Debt Securities
Underwriting Agreement
July 13, 1999
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX XXXXXX INCORPORATED
c/o Merrill Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation
("PSCo"), proposes, subject to the terms and conditions stated herein, to issue
and sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), Xxxxxx Brothers Inc. and Xxxxxxx Xxxxx Barney
Inc. (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof)
$200,000,000 of its Series A Senior Notes 6 7/8% due 2009 (the "Securities").
The Securities will be issued as a single series under an Indenture, dated as of
July 1, 1999 (the "Original Indenture") between PSCo and The Bank of New York,
as trustee (the "Trustee"), as it will be supplemented by a supplemental
indenture creating the Securities (said Original Indenture, as supplemented by a
supplemental indenture being hereafter referred to as the "Indenture" and
"Supplemental Indenture", respectively).
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY PSCO. PSCo represents
and warrants to each Underwriter as of the date hereof, as of the
Time of Delivery referred to in Section 2(c) hereof, and agrees
with each Underwriter as follows:
(i) REGISTRATION STATEMENT FILING. A registration
statement on Form S-3 (File No. 333-81791), in respect of
the Securities has been filed by PSCo with the Securities
and Exchange Commission (the "Commission") pursuant to Rule
415 under the Securities Act of 1933, as amended (the
"Act"), and delivered to the Underwriters; such registration
statement and any post-effective amendment thereto, each in
the form heretofore delivered to the Underwriters, have been
declared effective by the Commission in such form; and no
stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of PSCo, threatened
by the Commission (any preliminary prospectus included in
such registration statement or thereafter filed with the
Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is referred to
herein as a "Preliminary Prospectus". The various parts of
such registration statement, including (i) all exhibits
thereto, (ii) if applicable, the information contained in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be
a part of the registration statement at the time it was
declared effective and (iii) the documents incorporated by
reference in the prospectus contained in the registration
statement at the time such part of such registration
statement became effective, each as amended at the time such
part of such registration statement became effective, are
referred to herein collectively as the "Registration
Statement". The final prospectus, as supplemented by the
related prospectus supplement, in the form first filed with
respect to the Securities pursuant to Rule 424(b) under the
Act, is referred to herein collectively as the "Prospectus".
Any reference herein to any Preliminary Prospectus 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 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be.
Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be;
and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include PSCo's
most recent annual report on Form 10-K (the "Form 10-K"),
quarterly reports on Form 10-Q or current reports on Form
8-K, if any, filed pursuant to Section 13 or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is
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incorporated by reference in the Registration Statement
(the Form 10-K, the quarterly reports on Form 10-Q and any
current reports on Form 8-K are referred to herein
collectively as the "Exchange Act Filings")). For purposes
of this Agreement, all references to the Preliminary
Prospectus or Prospectus or to any amendment or supplement
to any of the foregoing shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX").
No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), and did
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information
furnished in writing to the PSCo by any Underwriter through
Xxxxxxx Xxxxx expressly for use therein.
(ii) INCORPORATED DOCUMENTS. The documents incorporated
or deemed to be incorporated by reference in the
Registration Statement and the Prospectus and any amendment
or supplement thereto, when they were or hereafter are filed
with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations"), and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and
the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission,
as the case may be, will conform in all material respects to
the requirements of the Exchange Act and the 1934 Act
Regulations and will not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(iii) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement complies, and the Prospectus and any
further amendments or supplements to the Registration
Statement or the Prospectus will comply, in all material
respects with the requirements of the Act and the 1933 Act
Regulations and do not and will not (i) as of the applicable
effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date
and as of the date hereof and as of the
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Time of Delivery (as defined below) as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to PSCo by
any Underwriter through Xxxxxxx Xxxxx expressly for use
therein or to the part of the Registration Statement which
shall constitute the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended (the "TIA"), of the
Trustee under the Indenture.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectuses,
together with the related schedules and notes, present
fairly the financial position of PSCo and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of PSCo and
its consolidated subsidiaries for the periods specified;
and, except as otherwise stated in the Registration
Statement, such financial statements have been prepared in
conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods
involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with
GAAP the information required to be stated therein.
(v) INDEPENDENT ACCOUNTANTS. Xxxxxx Xxxxxxxx LLP are
independent public accountants with respect to PSCo as
required by the Act and the 1933 Act Regulations.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material
adverse change in the business, property or condition,
financial or otherwise, of PSCo and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by PSCo or
any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to PSCo
and its subsidiaries, considered as one enterprise and (C)
neither PSCo nor any of its subsidiaries has any contingent
obligations which are material to PSCo and its subsidiaries
considered as one enterprise.
(vii) GOOD STANDING OF PSCO. PSCo has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Colorado, with
due corporate authority to own and operate its properties
and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement; and PSCo is duly qualified as a foreign
corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is
required,
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whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Act) of PSCo (each a
"Significant Subsidiary" and, collectively, the "Significant
Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in
good standing would not have a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and
the Prospectus, all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and is validly issued, fully paid and
non-assessable and is owned by PSCo, directly or through its
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None
of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such
Significant Subsidiary.
(ix) ABSENCE OF DEFAULTS AND CONFLICTS BY PSCO. Neither
PSCo nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which PSCo or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of PSCo or
any subsidiary is subject, except for such defaults that
would not result in a Material Adverse Effect. The issuance
and sale of the Securities by PSCo, the compliance by PSCo
with all of the provisions of this Agreement, the execution,
delivery and performance by PSCo of this Agreement, the
Original Indenture and the Supplemental Indenture and the
consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, any contracts, indenture,
mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which PSCo is a party or by which
PSCo is bound or to which any of the property or assets of
PSCo is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of
PSCo or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction
over PSCo or any of its properties.
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(x) AUTHORIZATION AND DESCRIPTION OF THE SECURITIES.
The Securities have been duly authorized by PSCo for
issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered by PSCo pursuant to this
Agreement against payment of the consideration set forth
herein, the Securities will be valid and binding obligations
of PSCo, enforceable in accordance with their terms, except
as enforcement thereof may be limited by laws or principles
of equity affecting generally the enforcement of 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; the Securities
conform in all material respects to the statements relating
thereto contained in the Prospectus.
(xi) AUTHORIZATION OF UNDERWRITING AGREEMENT. This
Agreement has been duly authorized, executed and delivered
by PSCo.
(xii) AUTHORIZATION OF THE INDENTURE. Each of the
Original Indenture and Supplemental Indenture have been duly
authorized by PSCo and, at the Time of Delivery (as defined
below), will have been duly executed and delivered by PSCo
and, assuming due authorization, execution and delivery by
the Trustee, will constitute a valid and binding agreement
of PSCo enforceable in accordance with its terms except to
the extent that enforcement thereof may be limited by
bankruptcy, insolvency or reorganization laws relating to or
affecting the enforcement of creditors' rights and by
general equity principles, and will conform in all material
respects to the statements relating thereto contained in the
Prospectus; and at the effective date of the Registration
Statement, the Indenture was or will have been duly
qualified under the TIA.
(xiii) INVESTMENT COMPANY ACT. PSCo is not, and upon
the issuance and sale of the Securities as herein
contemplated and the application of the proceeds therefrom
as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xiv) ABSENCE OF FURTHER REQUIREMENTS. PSCo has filed
with the Public Utilities Commission of the State of
Colorado (the "Colorado Commission") an application with
respect to the issuance and sale of PSCo's debt securities,
including the Securities, and the Colorado Commission has
issued its order authorizing and approving such issuance and
sale. No further consent or authorization of or approval by
the Colorado Commission or any other governmental or
regulatory authority or body is necessary in connection with
the issuance and sale by PSCo of the Securities pursuant to
this Agreement, except that their must be compliance with
the securities laws in the jurisdictions in which the
Securities are to be offered and sold.
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(xv) FRANCHISES. The franchises held by PSCo and its
subsidiaries, together with the applicable Certificates of
Convenience and Necessity issued by the Colorado Commission,
give PSCo and such subsidiaries all necessary authority for
the maintenance and operation of their respective properties
and business as now conducted, and are free from burdensome
restrictions or conditions of an unusual character.
(xvi) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of PSCo,
threatened, against or affecting PSCo or any subsidiary,
which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by PSCo of
its obligations hereunder.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of PSCo delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a representation and warranty by
PSCo to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, PSCo agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase, the amount of Securities
set forth opposite the name of such Underwriter in Schedule A
hereto, plus any additional Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof, at a purchase price equal to 98.575% of the
principal amount thereof. PSCo shall not be obligated to deliver
any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) OFFERING OF SECURITIES. Upon the authorization by
Xxxxxxx Xxxxx of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
(c) CLOSING. The Securities to be purchased by each
Underwriter hereunder will be represented by a global certificate
or certificates in book-entry form which will be deposited by or
on behalf of PSCo with The Depository Trust Company ("DTC") or
its designated custodian and registered in the name of Cede &
Co., as nominee of DTC. PSCo will deliver the Securities to
Xxxxxxx Xxxxx, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of immediately available funds to PSCo,
by causing DTC to credit the Securities to the account of
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Xxxxxxx Xxxxx at DTC. The time, date and location of such
delivery and payment (the "Time of Delivery") shall be 10:00
a.m., New York time, on July 16, 1999, at LeBoeuf, Lamb, Xxxxxx &
XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other time, date and location as Xxxxxxx Xxxxx and
PSCo may agree upon in writing.
SECTION 3. COVENANTS PSCo agrees with each of the
Underwriters:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b)
under the Act within the time prescribed under Rule 424(b) or
Rule 430A(a)(3), as the case may be, under the Act; to make no
further amendment or supplement to the Registration Statement or
the Prospectus prior to the Time of Delivery to which the
Underwriters reasonably object promptly after reasonable notice
thereof; to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; prior
to the termination of the offering of the Securities, to file
promptly all reports and any definitive proxy or information
statements required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to advise
the Underwriters, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) BLUE SKY QUALIFICATION. To use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the securities laws of such jurisdictions
of the United States as the Underwriters may designate and to
comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities,
provided that in connection therewith PSCo shall not be required
to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
(c) DELIVERY OF PROSPECTUSES. To furnish the Underwriters
with copies of the Prospectus in such quantities as the
Underwriters may reasonably request, and, if the delivery of a
prospectus is required in connection with the offer or sale of
the Securities and if at such time any event shall have occurred
as a result of which the Pro-
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spectus as then amended or supplemented would contain an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend
or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify
the Underwriters and upon the request of the Underwriters to
file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many
copies as the Underwriters may reasonably request of an
amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such
compliance.
(d) RULE 158. To file timely such reports pursuant to the
Exchange Act as are necessary in order to make generally
available to its security holders as soon as practicable, an
earnings statement of PSCo for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a)
of the Act.
(e) RESTRICTION ON SALE OF SECURITIES. Between the date
hereof and the date on which the distribution of the Securities
is complete, PSCo will not, without the prior written consent of
Xxxxxxx Xxxxx, offer or sell or enter into any agreement to sell,
any of its other debt securities which are substantially similar
to the Securities, including any guarantee of such securities, or
any securities convertible into or exchangeable for or
representing the right to receive any of the foregoing
securities.
(f) REPORTING REQUIREMENTS. PSCo, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(g) DELIVERY OF REGISTRATION STATEMENTS. To the extent not
previously so furnished, to furnish to Xxxxxxx Xxxxx two copies
of the signed Registration Statement, as initially filed with the
Commission, of all amendments thereto, and of all documents
incorporated by reference therein (including all exhibits filed
therewith, other than exhibits which have previously been
furnished to Xxxxxxx Xxxxx), two copies of each manually signed
consent and certificate of independent accountants and of each
other person who by his or her profession gives authority to
statements made by him or her and who is named in the
Registration Statement as having prepared, certified or reviewed
any part thereof, and to furnish to Xxxxxxx Xxxxx sufficient
unsigned copies of the foregoing (other than exhibits, including
consents filed as exhibits, to the Registration Statement) as
Xxxxxxx Xxxxx may reasonably request for distribution.
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(h) USE OF PROCEEDS. To apply the net proceeds from the sale
of the Securities in the manner set forth in the Prospectus.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. PSCo covenants and agrees with the several
Underwriters that it will pay the following: (i) the fees,
disbursements and expenses of PSCo's counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement Among Underwriters, this
Agreement, the Blue Sky Survey and any supplement thereto and any
other documents in connection with the offering, purchase, sale,
issuance and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering
and sale under state securities laws as provided in Section 3(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky Survey and any supplement thereto;
(iv) any fees charged by Standard & Poor's Ratings Services,
Xxxxx'x Investors Service, Inc. or Duff & Xxxxxx Credit Rating
Co. (each, a "Rating Agency") for rating the Securities; (v) the
costs of any depository arrangements for the Securities with DTC
or any successor depository; (vi) all fees and reasonable
expenses of the Trustee and any agent thereof and the fees and
disbursements of their counsel; (vii) the printing of the
Securities in certificated form, if required; and (viii) all
other costs and expenses incident to the performance of
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 12
hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
(b) TERMINATION OF AGREEMENT. If this Agreement is
terminated by the Underwriters in accordance with the provisions
of Section 5 or Section 9(a)(i) hereof, PSCo shall reimburse the
Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of PSCo contained
in Section 1 hereof or in certificates of any officer of PSCo
delivered pursuant to the provisions hereof, to the performance
by PSCo of its covenants and other obligations hereunder, and to
the following additional conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The
Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) and Rule 430A(a)(3), if appli-
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cable, within the applicable time period prescribed for
such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; and 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.
(b) ORDER OF COLORADO COMMISSION. At the Time of
Delivery, the order of the Colorado Commission authorizing
and approving the issuance and sale of the Securities shall
be final and in full force and effect and the time for
appeal therefrom or review thereof or intervention with
respect thereto shall have expired.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. Xxxxxx Xxxxxx
& Xxxxxxx, counsel for the Underwriters, shall have
furnished to the Underwriters their written opinion, dated
the Time of Delivery, with respect to the matters referred
to in clauses (ii), (iii), (iv), (v), (viii) and (xiii) of
Section 5(d) hereof and such related matters as the
Underwriters may request (it being understood that such
counsel may rely as to all matters of Colorado law and legal
conclusions based upon the opinion of counsel for PSCo
referred to in Section 5(d) hereof); and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(d) OPINION OF COUNSEL FOR COMPANY. LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P., counsel for PSCo, shall have
furnished to the Underwriters their written opinion, dated
the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect that:
(i) PSCo 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. To the best of their knowledge, PSCo is
duly qualified as a foreign corporation to transact
business and is in good standing in each
jurisdiction in which such qualification is
required, except where the failure to so qualify or
be in good standing would not have a material
adverse effect on the business, properties or
operations of PSCo and its subsidiaries considered
as one enterprise;
(ii) The Indenture has been duly and validly
authorized, executed and delivered by PSCo 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
agreement of PSCo, enforceable in accordance with
its terms, except as enforcement thereof may be
limited by laws and principles of equity affecting
generally the enforcement of creditors' rights,
including without limitation bankruptcy and
insolvency laws and state laws which affect
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the enforcement of certain remedial provisions of
the Indenture; PROVIDED, HOWEVER, that such state
laws will not, in our opinion, render the remedies
afforded by the Indenture inadequate for the
practical realization of the benefit provided
thereby.
(iii) The Indenture has been duly qualified
under the TIA;
(iv) The Securities are in due and proper
form and the issuance and sale of the Securities
have been duly authorized by all necessary corporate
action, and when duly executed, authenticated and
delivered to the Underwriters pursuant to this
Agreement against payment of the consideration set
forth therein, the Securities will be legal, valid
and binding obligations of PSCo enforceable (subject
to the exceptions and limitations referred to in
paragraph (ii) hereof) in accordance with their
terms.
(v) This Agreement has been duly authorized,
executed and delivered by PSCo;
(vi) The issuance and sale of the Securities
have been duly authorized and approved by an order
of the Colorado Commission 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, including under
the Public Utility Holding Company Act of 1935, as
amended, is legally required (other than in
connection or compliance with the provisions of the
securities laws of any jurisdiction) for the
issuance and sale by PSCo of the Securities pursuant
to this Agreement.
(vii) The facsimile signature of the
President, an Executive Vice President, a Senior
Vice President or a Vice President of PSCo in lieu
of his or her manual signature on the Securities and
the facsimile signature of the Secretary or an
Assistant Secretary of PSCo attesting the corporate
seal in lieu of his or her manual signature on the
Securities have been duly and properly authorized by
the Board of Directors of PSCo, are not inconsistent
with the provisions of the Restated Articles of
Incorporation, as amended, or By-laws of PSCo and
are valid and effective under the laws of the State
of Colorado; and the facsimile signatures of such
officers on the Securities have the same legal
effect as though they had manually signed and
attested the Securities as such respective officers.
13
(viii) The Securities and the Indenture
conform as to legal matters to the description of
the terms thereof contained in the Registration
Statement and the Prospectus, as amended or
supplemented to the date hereof.
(ix) The issuance and sale of the Securities
by PSCo, the compliance by PSCo with all of the
provisions of this Agreement, and the consummation
of the transactions contemplated herein, will not
conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any agreement or instrument known to
such counsel to which PSCo is a party or by which
PSCo is bound or to which any of the property or
assets of PSCo is subject, nor will such action
result in any violation of the provisions of the
charter or by-laws of PSCo or any statute or any
order, rule or regulation known to such counsel of
any court or government agency or body having
jurisdiction over PSCo or any of its properties;
(x) The statements in PSCo's Annual Report on
Form 10-K for the fiscal year ended December 31,
1998, incorporated by reference into the Prospectus,
under the heading "Character of Ownership" in Item
2. Properties, and insofar as they are, or refer to,
statements of law or legal conclusions, have been
prepared or reviewed by their counsel and are
correct in all material respects and fairly present
the information purported to be given;
(xi) To the best of their knowledge, neither
PSCo nor any subsidiary is in violation of its
charter or by-laws and no default by PSCo or any
subsidiary exists in the due performance or
observance of any material contract, indenture,
mortgage, loan agreement, note, lease or other
agreement or instrument;
(xii) The documents incorporated by reference
in the Prospectus or any further amendment or
supplement thereto made by PSCo prior to the Time of
Delivery (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion), when they were filed with
the Commission, complied as to form in all material
respects with the requirements of the Exchange Act
and the 1934 Act Regulations;
(xiii) The Registration Statement is
effective under the Act and, to the best of their
knowledge, no proceedings for a stop order have been
instituted or are pending or threatened under
Section 8(d) of the Act. The Registration Statement
and the Prospectus and any further amendments and
supplements thereto made by PSCo prior to the Time
of Delivery (other than the financial statements
(including the notes thereto) and related schedules
and other financial or statistical data contained or
incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form
in all material
14
respects with the requirements of the Act and the
TIA and the rules and regulations thereunder; and
(xiv) PSCo is not, and upon the issuance and
sale of the Securities as contemplated by this
Agreement and the application of the proceeds
therefrom as described in the Prospectus will not
be, an "investment company" or an entity
"controlled" by an "investment company" required to
be registered under the Investment Company Act of
1940, as amended.
Such counsel shall state that it does not know of
any legal or governmental proceeding (pending or
threatened) required to be described in the Registration
Statement or Prospectus, as amended or supplemented to the
date hereof, which is not described as required, nor of any
contract or document of a character required to be
described in the Registration Statement or the Prospectus,
as amended or supplemented to the date hereof, or to be
filed as an exhibit to the Registration Statement which is
not described or filed as required.
Such counsel shall also state that in connection
with their opinion, they have participated in discussions
with officers and representatives of PSCo, in certain of
which representatives of the Underwriters and their counsel
also participated and at which the affairs of PSCo and the
contents of the Registration Statement and the Prospectus
were discussed. There is no assurance that all possible
material facts as to PSCo were disclosed to such counsel or
that such counsel's familiarity with PSCo or the operations
in which it is engaged is such that such counsel have
necessarily recognized the materiality of such facts as
were disclosed. To the extent such counsel have deemed
appropriate, such counsel have relied upon statements of
officers and representatives of PSCo as to the materiality
of those facts disclosed to such counsel. Such counsel are
not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus
except to the limited extent referred to in paragraphs
(viii) and (ix) above. Subject to the foregoing, and to the
other limitations and qualifications expressed in this
letter, such counsel may state that nothing has come to its
attention that would lead such counsel to believe that the
Registration Statement, when it became effective or on the
date of this Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that, at the date the Prospectus
Supplement was filed with the Securities and Exchange
Commission, the Prospectus included, or, at the date
hereof, the Prospectus, as it may have been amended or
supplemented, includes an 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; provided that such counsel need not ex-
15
press any belief as to the financial statements
(including the notes thereto) and related schedules or
other financial or statistical data contained or
incorporated by reference in the Registration Statement
or the Prospectus, or any amendment or supplement thereto,
as to any information contained therein furnished to PSCo
in writing by any Underwriter through Xxxxxxx Xxxxx
expressly for use therein or as to the Statement of
Eligibility (Form T-1).
(e) OFFICERS' CERTIFICATE. At the Time of Delivery,
there shall not have been, since the date hereof or since
the respective dates as of which information is given in
the Prospectus, any material adverse change in the
business, property or condition, financial or otherwise, of
PSCo and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business,
and the Underwriters shall have received a certificate of
the President, an Executive Vice President, a Senior Vice
President or a Vice President of PSCo and of the chief
financial officer, chief accounting officer, the Treasurer
or an Assistant Treasurer of PSCo, dated as of the Time of
Delivery, to the effect that (i) there has been no such
material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and
as of the Time of Delivery, (iii) PSCo has complied with
all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Time of
Delivery, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(f) ACCOUNTANT'S COMFORT LETTER. On the date of this
Agreement, Xxxxxx Xxxxxxxx LLP shall have furnished to the
Underwriters a letter, dated the date of this Agreement, in
form and substance satisfactory to the Underwriters, to the
effect that:
(i) they are independent public accountants
with respect to PSCo and its subsidiaries within the
meaning of the Act and the applicable published
rules and regulations thereunder (the "Act
Regulations");
(ii) in their opinion, the audited
consolidated financial statements and financial
statement schedule(s) incorporated by reference in
the Registration Statement and the Prospectus and
included in the Form 10-K comply as to form in all
material respects with the applicable accounting
requirements of the Act, the Act Regulations, the
Exchange Act and the applicable published rules and
regulations thereunder (the "Exchange Act
Regulations");
(iii) on the basis of (1) the performance of
the procedures specified by the American Institute
of Certified Public Accountants for a review of
interim financial information as described in
Statement on Auditing Standards
16
No. 71, Interim Financial Information, on the
unaudited consolidated balance sheets, the
unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated
statements of cash flows, of PSCo and its
subsidiaries included in PSCo's quarterly reports
on Form 10-Q filed with the Commission under
Section 13 of the Exchange Act (the "Form
10-Q's") subsequent to the Form 10-K, (2) a
reading of the latest available unaudited
financial statements of PSCo, (3) a reading of
the minutes of the Annual Meeting of Shareholders
and the latest minutes of Meetings of the Board
of Directors of PSCo as set forth in the minute
books for the current year and certain draft
resolutions for subsequent meetings and (4)
inquiries of the officers of PSCo who have
responsibility for financial and accounting
matters (it being understood that the foregoing
procedures do not constitute an audit made in
accordance with generally accepted auditing
standards and would not necessarily reveal
matters of significance with respect to the
comments made in such letter, and accordingly
that Xxxxxx Xxxxxxxx LLP makes no representation
as to the sufficiency of such procedures for the
purposes of the several Underwriters), nothing
has come to their attention which caused them to
believe that (A) any material modifications
should be made to the unaudited consolidated
financial statements included in the Form 10-Q's
for them to be in conformity with generally
accepted accounting principles; (B) the unaudited
consolidated financial statements included in the
Form 10-Q's do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as they apply to
Form 10-Q and Exchange Act Regulations or (C) at
the date of the latest available consolidated
financial statements and at a specified date not
more than three business days prior to the date
of such letter, there was any change in the
consolidated capital stock or increase in the
consolidated long-term debt of PSCo or any
decrease in the consolidated net assets or
shareholders' equity of PSCo, in each case as
compared with the amounts shown on the most
recent consolidated balance sheet of PSCo
incorporated by reference in the Registration
Statement and the Prospectus or, during the
period from the date of such balance sheet to a
specified date not more than three business days
prior to the date of such letter, upon inquiries
of the appropriate officers of PSCo, there were
any decreases, as compared with the corresponding
period in the preceding year, in consolidated
operating revenues or consolidated net income of
PSCo, except in each such case as set forth in or
contemplated by the Registration Statement and
the Prospectus or except for such exceptions
enumerated in such letter as shall have been
agreed to by the Underwriters and PSCo; and
(iv) In addition to the audits referred to in
their report appearing in the Form 10-K incorporated
by reference in the Registration Statement and the
17
Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out certain
other specified procedures, not constituting an
audit, with respect to certain amounts, percentages
and financial information which are included or
incorporated by reference in the Registration
Statement and the Prospectus and which are specified
by the Underwriters, and have found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial
and other records of PSCo and its subsidiaries
identified in such letter, provided that said letter
may vary from the requirements specified above in
such manner as the Underwriters may deem not to be
material or as may be acceptable to the Underwriters
who have agreed to purchase in the aggregate 50% or
more of the Securities.
(g) BRING-DOWN COMFORT LETTER. At the Time of
Delivery, the Underwriters shall have received from Xxxxxx
Xxxxxxxx LLP a letter, dated as of the Time of Delivery, to
the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this
Section, except that the specified date referred to shall
be a date not more than three business days prior to the
Time of Delivery.
(h) MAINTENANCE OF RATING. Since the date of this
Agreement, there shall not have occurred a downgrading in
the rating assigned to the Securities or any of PSCo's
other securities by S&P or Xxxxx'x, and neither S&P nor
Xxxxx'x shall have publicly announced that it has under
surveillance or review its rating of the Securities or any
of PSCo's other securities.
(i) EXECUTION OF AGREEMENTS. The Indenture shall
have been executed and delivered, in each case in a form
reasonably satisfactory to the Underwriters.
(j) ADDITIONAL DOCUMENTS. At the Time of Delivery,
counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by PSCo in
connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the
Underwriters.
(k) TERMINATION OF AGREEMENT. If any condition
specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to PSCo at any
time at or prior to the Time of Delivery, and such
termination shall be without liability of any party to any
other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
18
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF UNDERWRITERS. PSCo agrees to
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the 1934
Act, as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or arising out of any untrue statement or
alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission or
any alleged untrue statement or omission, if such
settlement is effected with the written consent of
PSCo; and
(iii) against any and all expense whatsoever,
as incurred (including the fees and disbursements of
counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending
against any litigation, or any investigation or
proceeding by any governmental agency or body
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
(i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information
furnished to PSCo by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
PSCo shall not be liable for indemnity under this
Section 6(a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability
of such Underwriter results solely from the fact that such
Underwriter sold Securities to a person to
19
whom it is established that there was not sent or given,
at or prior to the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated
by reference) in any case where such delivery is required
by the Act, if PSCo has previously furnished to the
Underwriters the copies thereof in compliance with this
Agreement, and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary
Prospectus that was corrected in the Prospectus.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees that it will
indemnify and hold harmless PSCo, its directors, and each
of its officers who signed the Registration Statement and
each person, if any, who controls them within the meaning
of Section 15 of the Act or Section 20 of the 1934 Act to
the same extent as the indemnity agreement set forth in
Section 6(a) hereof, but only with respect to statements or
omissions made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or any amendment
or supplement thereto, in reliance upon and in conformity
with written information furnished to PSCo by such
Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement, such Preliminary Prospectus, or the
Prospectus, or any amendment or supplement thereto.
(c) ACTION AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected
by Xxxxxxx Xxxxx, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by PSCo, in each case reasonably
acceptable to the indemnifying party. An indemnifying party
may participate at its own expense in the defense of any
such action; PROVIDED, HOWEVER, that counsel to the
indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
Section 6 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all
liability arising out of such litigation, investigation,
pro-
20
ceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO
REIMBURSE. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification
provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein; then each
indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by PSCo on the one hand and the
Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of PSCo on the
one hand and of the Underwriters on the other hand in
connection with the statements or omissions, which resulted
in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations.
The relative benefits received by PSCo on the one
hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting
expenses) received by PSCo and the total underwriting
discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set
forth on such cover.
The relative fault of PSCo on the one hand and the
Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by PSCo or by the Underwriters and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
21
PSCo and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section
7 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 Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities 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 any 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 0000 Xxx) shall
be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any,
who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Underwriter, and
each director of PSCo, each officer of PSCo who signed the
Registration Statement, and each person, if any, who
controls PSCo within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same
rights to contribution as PSCo. The Underwriters'
respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY. All representations,
warranties and agreements contained in this Agreement or in
certificates of officers of PSCo submitted pursuant hereto
shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of
PSCo, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriters may
terminate this Agreement, by notice to PSCo, at any time at
or prior to the Time of Delivery, (i) if there has been,
since the time of execution of this Agreement or since the
respective dates as of which information is
22
given in the Prospectus, any material adverse change in
the business, property or condition, financial or
otherwise, of PSCo and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or
development involving a prospective change in national
or international political, financial or economic
conditions, in each case the effect of which is such as
to make it, in the judgment of the Underwriters,
impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if
trading in any securities of PSCo has been suspended or
materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York
Stock Exchange has been suspended or materially limited,
or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required,
by such exchange or by order of the Commission, or any
other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New
York authorities.
(b) LIABILITIES. If this Agreement is terminated
pursuant to this Section, such termination shall be without
liability of any party to any other party except as
provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If any Underwriter or Underwriters shall fail
or refuse at the Time of Delivery (otherwise than for some
reason sufficient to justify, in accordance with the
provisions hereof, the cancellation or termination of its
or their obligations hereunder) to purchase and pay for the
Securities which it or they have agreed to purchase as
provided in paragraph 2 hereof (the "Defaulted
Securities"), and:
(a) if the aggregate principal amount of the
Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities, the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have
the right, within a period of 24 hours thereafter, to make
arrangements for one or more of the Non-Defaulting
Underwriters, or any other purchasers acceptable to PSCo,
to purchase all, but not less than all, of the Defaulted
Securities in such principal amounts as may be agreed upon
and upon the terms herein set forth; if, however, during
such 24 hour period the Non-Defaulting Underwriters shall
not have completed such arrangements for the purchase of
all the Defaulted Securities, then the Non-Defaulting
Underwriters shall be obligated to purchase and pay for the
Defaulted Securities in proportion to their respective
original purchase commitments hereunder (based upon the
ratio that each of their respective original purchase
commitments bears to the aggregate original purchase
commitment of the Non-Defaulting Underwriters); or
23
(b) if the aggregate principal amount of the
Defaulted Securities exceeds 10% of the aggregate principal
amount of the Securities, the Non-Defaulting Underwriters
shall have the right, within a period of 24 hours
thereafter, to make arrangements for one or more of the
Non-Defaulting Underwriters, or any other purchasers
acceptable to PSCo, to purchase the Defaulted Securities in
such principal amounts as may be agreed upon and upon the
terms herein set forth; if, however, during such 24 hour
period the Non-Defaulting Underwriters shall not have
completed such arrangements for the purchase of all the
Defaulted Securities, then PSCo may, within a further
period of 24 hours, make arrangements with one or more
other members of the National Association of Securities
Dealers, Inc., satisfactory to the Non-Defaulting
Underwriters, to purchase and pay for, upon the terms
herein set forth, Defaulted Securities for the purchase of
which no arrangements shall have been made by the
Non-Defaulting Underwriters. In the event that neither the
Non-Defaulting Underwriters nor PSCo has arranged for the
purchase of the Defaulted Securities as above provided,
then this Agreement shall terminate.
No action taken by PSCo or the Non-Defaulting Underwriters
under this Section 9 shall relieve any defaulting Underwriter of
liability in respect of its default hereunder.
In the event that the sale and delivery of all or any
principal amount of the Securities shall be effected as provided
in clause (a) or (b) above, (a) either PSCo or the Underwriters
shall have the right to postpone the Time of Delivery until the
fifth business day after the Time of Delivery originally specified
in Section 2 hereof or such other time as PSCo and the
Underwriters (or the representative of the Non-Defaulting
Underwriters and the substituted purchasers, if any) shall agree,
(b) PSCo shall promptly prepare and file with the Commission any
amendments or supplements to the Prospectus which may thereby be
made necessary and (c) the respective principal amounts of
Securities to be purchased by the Non-Defaulting Underwriters or
substituted purchasers shall be taken as the basis of their
respective purchase commitments hereunder.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Underwriters c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated at Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, attention of: Xxxxxx Xxxxx (telecopy number:
212-449-8636); and notices to PSCo shall be directed to it at 0000
00xx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000, Attention:
Xxxxx X. Xxxxxxx (telecopy number: 303-294-2976).
SECTION 12. PARTIES. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters and PSCo and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person,
24
firm or corporation, other than the Underwriters and PSCo and
their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters and PSCo and their respective
successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
25
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to PSCo a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and PSCo in accordance with its terms.
Very truly yours,
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx Xxxxx
------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
Schedule A
----------
Principal Amount of
Name of Underwriter Securities to be Purchased
------------------- --------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated.................. $120,000,000
Xxxxxx Brothers Inc..................... 40,000,000
Xxxxxxx Xxxxx Xxxxxx Inc................ 40,000,000
------------
Total............................. $200,000,000
------------
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