PSCO CAPITAL TRUST I
(a Delaware statutory business trust)
PUBLIC SERVICE COMPANY OF COLORADO
(a Colorado corporation)
7,760,000 Shares
TRUST ORIGINATED PREFERRED SECURITIES
UNDERWRITING AGREEMENT
DATED: MAY 6, 1998
PSCO CAPITAL TRUST I
(a Delaware statutory business trust)
PUBLIC SERVICE COMPANY OF COLORADO
(a Colorado corporation)
7,760,000 Shares
7.60% Trust Originated Preferred Securities (SM) ("TOPrS-SM-")
Underwriting Agreement
May 6, 1998
XXXXXXX XXXXX & CO.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
as representatives (the "Representatives")
of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
PSCO CAPITAL TRUST I, a Delaware statutory business trust (the
"Trust"), and PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation
("PSCo"), propose, subject to the terms and conditions stated herein, that
the Trust issue and sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), X.X. Xxxxxxx & Sons, Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated, PaineWebber Incorporated and each of the
other Underwriters named in Schedule I hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof) 7,760,000 7.60% Trust Originated
Preferred Securities (liquidation amount $25 per security), representing
------------------
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
-2-
preferred undivided beneficial interests in the assets of the Trust (the
"Preferred Securities"), guaranteed by PSCo as to the payment of
distributions and payments upon liquidation or redemption, and benefiting
from certain additional undertakings of PSCo to the extent set forth in (i)
the Guarantee Agreement between PSCo and The Bank of New York, as trustee
thereunder (the "Guarantee Trustee"), to be dated as of the Time of Delivery
(as defined in Section 2 hereof) (the "Guarantee"), (ii) PSCo's 7.60%
Deferrable Interest Subordinated Debentures (the "Subordinated Debentures"),
to be executed at the Time of Delivery, (iii) the Indenture between PSCo and
The Bank of New York, as trustee thereunder (the "Debenture Trustee"), dated
as of May 1, 1998, to be supplemented by the First Supplemental Indenture
thereto relating to the Subordinated Debentures (collectively, the
"Indenture") and (iv) the declaration of trust between PSCo, as depositor,
and the trustees named therein (as amended and restated from time to time,
the "Declaration").
Concurrently with the issuance of the Preferred Securities and
PSCo's investment in the common securities of the Trust (the "Common
Securities") representing undivided beneficial interests in the assets of the
Trust, the Trust will loan the proceeds thereof to PSCo and, to evidence such
loan, PSCo will issue and deliver to the Trust the Subordinated Debentures,
which will be issued under the Indenture.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE TRUST AND
PSCO. Each of the Trust and PSCo, jointly and severally, represents and
warrants to each Underwriter as of the date hereof, as of the Time of
Delivery referred to in Section 2(d) hereof, and agrees with each Underwriter
as follows:
(i) REGISTRATION STATEMENT FILING. A registration
statement on Form S-3 (File No. 333-47485), as amended by
pre-effective amendment no. 1 thereto, in respect of, among
other things, the Preferred Securities, the Guarantee and the
Subordinated Debentures (collectively, the "Registered
Securities") has been filed 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 Representatives; such registration statement and any
post-effective amendment thereto, each in the form heretofore
delivered to the Representatives, have been declared effective
by the Commission in such form; and no stop order suspending
the effec-
-3-
tiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated
or, to the knowledge of PSCo and the Trust, 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
Preferred 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; and
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
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")).
-4-
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 Trust or 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 Prospectus, 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 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 Trust Indenture Act of 1939, as
amended (the "TIA"), and the rules and regulations of the
Commission thereunder and do not and will not (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto
-5-
and (ii) as of the applicable filing date and as of the date
hereof 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
(a) any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust or
PSCo by any Underwriter through Xxxxxxx Xxxxx expressly for use
therein or (b) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the TIA.
(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) except for
regular dividends on PSCo's common stock, par value $.01 per share
(the "Common Stock") and
-6-
PSCo's preferred stock, in amounts per share that are
consistent with past practice, there has been no dividend
or distribution of any kind declared, paid or made by PSCo
on any class of its capital stock.
(vii) GOOD STANDING OF THE TRUST. The Trust has been duly
created and is validly existing as a statutory business trust in
good standing under the Business Trust Act of the State of Delaware
(the "Delaware Business Trust Act") with the trust power and
authority to own property and conduct its business as described in
the Prospectus, and has conducted and will conduct no business
other than the transactions contemplated by this Agreement and
described in the Prospectus; the Trust is not a party to or bound
by any agreement or instrument other than this Agreement, the
Declaration and the agreements and instruments contemplated by the
Declaration and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration and
described in the Prospectus; the Trust is not a party to or subject
to any action, suit or proceeding of any nature; and the Trust is
and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(viii) 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, 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.
(ix) 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 oper-
-7-
ate 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 on the business, property, condition
(financial or otherwise) or results of operations of PSCo and its
subsidiaries, considered as a whole. 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
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.
(x) ABSENCE OF CONFLICTS BY THE TRUST. The issuance and sale
of the Preferred Securities and the Common Securities by the Trust,
the compliance by the Trust with all of the provisions of this
Agreement, the purchase of the Subordinated Debentures by the Trust
from PSCo, the distribution of the Subordinated Debentures upon the
liquidation of the Trust in the circumstances contemplated by the
Declaration and described in the Prospectus, and the consummation
by the Trust of the transactions contemplated herein and in the
Declaration, 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 to which the Trust is a
party or by which the Trust is bound or to which any of the
property or assets of the Trust is subject, nor will such action
result in any violation of the provisions of the Declaration or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust or
any of its properties.
(xi) 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
-8-
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 Preferred Securities and the Common Securities by the
Trust, the issuance by PSCo of the Subordinated Debentures and the
Guarantee, the compliance by PSCo and the Trust with all of the
provisions of this Agreement, the execution, delivery and
performance by PSCo of the Declaration, the Guarantee, the
Indenture and the Subordinated Debentures (collectively, the "PSCo
Agreements"), the distribution of the Subordinated Debentures upon
the liquidation of the Trust in the circumstances contemplated by
the Declaration and described in the Prospectus, 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
indenture, mortgage, deed of trust, loan 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.
(xii) AUTHORIZATION AND DESCRIPTION OF COMMON SECURITIES. The
Common Securities have been duly authorized by the Declaration and,
when issued and delivered by the Trust to PSCo against payment
therefor as described in the Registration Statement and Prospectus,
will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform in all
material respects to the statements relating thereto contained in
the Prospectus; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and at the Time of
Delivery all of the issued and outstanding Common Securities of the
Trust will be directly owned by PSCo free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xiii) AUTHORIZATION OF UNDERWRITING AGREEMENT. This Agreement
has been duly authorized, executed and delivered by each of PSCo
and the Trust.
-9-
(xiii) AUTHORIZATION OF DECLARATION. The Declaration has been
duly authorized by PSCo and, at the Time of Delivery, will have
been duly executed and delivered by PSCo and, assuming due
authorization, execution and delivery of the Declaration by the
Trustees, the Declaration will be a valid and binding obligation
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 Declaration was or will have been duly
qualified under the TIA.
(xv) AUTHORIZATION OF GUARANTEE AGREEMENT. The Guarantee
Agreement has been duly authorized by PSCo and, at the Time of
Delivery, will have been duly executed and delivered by PSCo and,
assuming due authorization, execution and delivery of the Guarantee
by the Guarantee Trustee, will constitute a valid and binding
obligation 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 the Guarantee and the Guarantee Agreement
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 Guarantee Agreement was or will have
been duly qualified under the TIA.
(xvi) AUTHORIZATION AND DESCRIPTION OF PREFERRED SECURITIES.
The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this
Agreement, will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial
interests in the Trust, will be entitled to the benefits of the
Declaration and will conform in all material respects to the
statements relating thereto contained in the Prospectus; the
issuance of the Preferred Securities is not subject to preemptive
or other similar rights.
(xvii) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized by PSCo and, at the Time of Delivery, will have
been duly executed and delivered by PSCo and, assuming due
authorization, execution and delivery by
-10-
the Indenture 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.
(xviii) AUTHORIZATION AND DESCRIPTION OF SUBORDINATED DEBENTURES.
The Subordinated Debentures have been duly authorized by PSCo
and, at the Time of Delivery, will have been duly executed
by PSCo and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in
the Prospectus, will constitute valid and binding obligations of
PSCo enforceable in accordance with their 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;
will be in the form contemplated by, and entitled to the benefits
of, the Indenture; and will conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xix) INVESTMENT COMPANY ACT. Neither PSCo nor the Trust is,
and upon the issuance and sale of the Preferred 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").
(xx) ABSENCE OF FURTHER REQUIREMENTS. No consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the
Trust or PSCo or any of their properties is required for the
issuance and sale of the Preferred Securities and Common Securities
by the Trust, the issuance by PSCo of the Subordinated Debentures
and the Guarantee, the purchase of the Subordinated Debentures by
the Trust from PSCo, the distribution of the Subordinated
Debentures upon the liquidation of the Trust in the circumstances
contemplated by the Declaration and described in the Prospectus,
the execution, delivery and
-11-
performance by PSCo of the PSCo Agreements, or the consummation of the
transactions contemplated herein or therein, except the registration of the
Registered Securities under the Act, registration of the Preferred
Securities under the Exchange Act, the qualification of the Declaration,
the Indenture and the Guarantee under the TIA, the filing of an
application with and receipt of an order from, the Public Utilities
Commission of the State of Colorado (the "Colorado Commission") and
the Commission under the Public Utility Holding Company Act of
1935, as amended (the "1935 Act"), with respect to the transaction
contemplated by the PSCo Agreements and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
issuance and sale, as the case may be, of the Registered Securities.
(xxi) 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;
(b) OFFICER'S CERTIFICATES. Any certificate signed by
any officer of PSCo or the Trust delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
PSCo and by the Trust to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) PREFERRED SECURITIES. Subject to the terms and
conditions herein set forth, the Trust agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase, at a purchase price per share of $25.00 per Preferred
Security, the number of Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto, plus any additional Preferred
Securities which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof.
(b) PAYMENT. As compensation to the Underwriters for
their commitments hereunder, and in view of the fact that the proceeds of the
sale of the Preferred Securities will be
-12-
used by the Trust to purchase the Subordinated Debentures of PSCo, PSCo
hereby agrees to pay at the Time of Delivery to Xxxxxxx Xxxxx, for the
accounts of the several Underwriters, an amount equal to $0.7875 per share
for the Preferred Securities, except that such commission will be $0.50 per
Preferred Security sold to certain institutions by wire transfer of
immediately available funds.
(c) OFFERING OF SECURITIES. Upon the authorization by
the Representatives of the release of the Preferred Securities, the several
Underwriters propose to offer the Preferred Securities for sale upon the
terms and conditions set forth in the Prospectus.
(d) CLOSING. The Preferred 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
the Trust with The Depository Trust Company ("DTC") or its designated
custodian and registered in the name of Cede & Co., as nominee of DTC. The
Trust will deliver the Preferred 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 the Trust, by causing DTC to credit the Preferred Securities to the
account of 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 May 11, 1998, or at such other time, date and location as the
Representatives, the Trust and PSCo may agree upon in writing at LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
At the Time of Delivery, PSCo will pay, or cause to be
paid, the compensation payable to the Underwriters under Section 2 hereof by
wire transfer of immediately available funds to Xxxxxxx Xxxxx, on behalf of
the Underwriters.
SECTION 3. COVENANTS OF PSCO AND THE TRUST. Each of the Trust
and PSCo, jointly and severally, agrees with each of the Underwriters:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. To prepare the Prospectus in a form approved by the
Representatives 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
-13-
prior to the Time of Delivery to which the Representatives reasonably
object promptly after reasonable notice thereof; to advise the
Representatives, 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
Representatives with copies thereof; in the case of PSCo, prior
to the termination of the offering of the Preferred 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 Representatives, 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 Registered 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 Registered 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 Registered
Securities for offering and sale under the securities laws of such
jurisdictions of the United States as the Representatives 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
Preferred Securities, provided that in connection therewith neither
the Trust nor PSCo shall 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
Representatives may reasonably request, and, if the delivery of a
prospectus is required in connection with the offering or sale of
the Preferred Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would
-14-
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 or 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
Representatives and upon the request of the Representatives 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
Representatives 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. The Trust will make generally available to its
security holders as soon as practicable, an earnings statement of
PSCo (in form complying with the provisions of Rule 158 under the
Act) covering the 12-month period beginning not later than the
first day of PSCo's fiscal quarter next following the effective
date (as defined in Rule 158) of the Registration Statement.
(e) RESTRICTION ON SALE OF SECURITIES. During a period of 30
days from the date of the Prospectus, PSCo will not, without the
prior written consent of Xxxxxxx Xxxxx, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or
dispose of any Preferred Securities, any other preferred beneficial
interests in any trust or any securities which are substantially
similar to the Subordinated Debentures, the Guarantee or the
Preferred Securities, or any securities convertible into or
exchangeable for or representing the right to receive any of the
afore-mentioned securities (other than the Preferred Securities and
Subordinated Debentures issued pursuant to this Agreement) or file
a registration statement under the Act with respect to the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Preferred
Securities, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Preferred
Securities or such other securities, in cash or otherwise.
-15-
(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) ISSUANCE OF GUARANTEE AND SUBORDINATED DEBENTURES. In
the case of PSCo, to issue the Guarantee and the Subordinated
Debentures concurrently with the issuance and sale of the Preferred
Securities as contemplated herein.
(h) LISTING. To use their best efforts to list, subject to
notice of issuance, (i) the Preferred Securities and (ii) upon any
distribution upon the liquidation of the Trust to holders of the
Preferred Securities, the Subordinated Debentures, in each case on
the New York Stock Exchange.
(i) DELIVERY OF REGISTRATION STATEMENTS. To the extent not
previously so furnished, to furnish to Xxxxxxx Xxxxx two signed
copies of the 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 you), two signed copies of each consent and certificate of
independent accountants and of each other person who by his
profession gives authority to statements made by him and who is
named in the Registration Statement as having prepared, certified
or reviewed any part thereof, and to furnish to you sufficient
unsigned copies of the foregoing (other than exhibits, including
consents filed as exhibits, to the Registration Statement) as you
may reasonably request for distribution.
(j) 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. The Trust and PSCo, jointly and
severally, covenant and agree with the several Underwriters that they will
pay the following: (i) the fees, disbursements and expenses of the Trust's
and PSCo's counsel and accountants in connection with the registration of the
Registered Securities
-16-
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 and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Registered Securities; (iii) all expenses in connection with the
qualification of the Registered 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 and Legal Investment
Memoranda; (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 Preferred Securities; (v) the costs and
charges of the transfer agent or registrar; (vi) the costs of any depository
arrangements for the Preferred Securities with DTC or any successor
depository; (vii) all fees and reasonable expenses of the Trustees, the
Debenture Trustee and the Guarantee Trustee and any agent thereof and the
fees and disbursements of their counsel; (viii) all fees and expenses in
connection with the listing of the Preferred Securities and, if applicable,
the Subordinated Debentures on the New York Stock Exchange and the cost of
registering the Preferred Securities under Section 12 of the Exchange Act;
(ix) the printing of the Preferred Securities and the Subordinated Debentures
in certificated form, if required; and (x) 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, stock transfer taxes on resale of any of the Preferred
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 Representatives in accordance with the provisions of
Section 5 or Section 9(a)(i) hereof, PSCo and the Trust, jointly and
severally, 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
-17-
the accuracy of the representations and warranties of the Trust and PSCo
contained in Section 1 hereof or in certificate of any officer of PSCo or any
trustee of the Trust delivered pursuant to the provisions hereof, to the
performance by PSCo and the Trust of their 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 applicable, 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 Registered 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
Representatives their written opinion, dated the Time of Delivery,
with respect to the matters referred to in clauses (ii), (iii),
(iv), (vii), (viii) and (xii) of Section 5(d) hereof and such
related matters as you may request (it being understood that such
counsel may rely as to all matters of Colorado law and legal
conclusions based thereon upon the opinion of counsel for PSCo
referred to in Section 5(d) hereof and as to all matters of
Delaware law and legal conclusions based thereon upon the opinion
of counsel referred to in Section 5(e) 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 and the Trust shall have furnished
to the Representatives their written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Representatives,
to the effect that:
-18-
(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 our 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 PSCo Agreements each have been duly authorized,
executed and delivered by PSCo and constitute valid
instruments or obligations, as the case may be, legally
binding upon and enforceable against PSCo (except as limited
by bankruptcy, insolvency or other laws or equitable
principles affecting creditors' rights generally); and the
Subordinated Debentures are entitled to the benefits provided
by the Indenture;
(iii) This Agreement has been duly authorized, executed
and delivered by PSCo and the Trust;
(iv) The Declaration, the Indenture and the Guarantee
have been duly qualified under the TIA;
(v) The issuance and sale of the Preferred Securities and
the Common Securities by the Trust, the compliance by the Trust
with all of the provisions of this Agreement, the purchase of
the Subordinated Debentures by the Trust from PSCo, the
distribution of the Subordinated Debentures upon the
liquidation of the Trust in the circumstances contemplated by
the Declaration and described in the Prospectus, and the
consummation of the transactions contemplated herein and in
the Declaration, 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 the Trust is a party or by which the
Trust is bound or to which any of the property or assets of
the Trust is subject, nor will such action result in any
violation of the provisions of the Declaration or any statute
or any order, rule or regulation known to
-19-
such counsel of any court or government agency or body having
jurisdiction over the Trust or any of its properties;
(vi) The issuance and sale of the Preferred Securities
and the Common Securities by the Trust, the issuance by PSCo
of the Guarantee and the Subordinated Debentures, the
compliance by PSCo and the Trust with all of the provisions of
this Agreement, the execution, delivery and performance by
PSCo of the PSCo Agreement, the distribution of the
Subordinated Debentures upon the liquidation of the Trust in
the circumstances contemplated by the Declaration and
described in the Prospectus (including the use of the proceeds
by PSCo to redeem its outstanding preferred stock) 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 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
governmental agency or body having jurisdiction over PSCo or
any of its properties;
(vii) The Registered Securities conform as to legal
matters to the statements concerning them in the Prospectus;
and the summaries of the PSCo Agreements contained in the
Prospectus constitute correct summaries thereof in all
material respects for use therein;
(viii) The statements set forth in the Prospectus under the
captions "Description of the Preferred Securities of the
Trust," "Certain Terms of the Preferred Securities,"
"Description of the Preferred Securities Guarantee,"
"Description of the Debt Securities," insofar as it relates to
the Subordinated Debt Securities and "Certain Terms of the
Subordinated Debentures," insofar as they constitute summaries
or matters of law or legal conclusions, fairly present the
information set forth therein;
-20-
(ix) The statements in PSCo's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997, 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 us and are correct in all material
respects and fairly present the information purported to be
given;
(x) To the best of our 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;
(xi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Trust or 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;
(xii) The Registration Statement is effective under the
Act and, to the best of our 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 the Trust or 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 respects with the
requirements of the Act and the TIA and the rules and
regulations thereunder;
(xiii) Neither the Trust nor PSCo is, and upon the issuance
and sale of the Preferred 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
-21-
be registered under the Investment Company Act of 1940, as amended;
(xiv) The statements made in the Prospectus under the caption
"United States Taxation," to the extent they constitute matters of
law or legal conclusions, have been reviewed by such counsel and
are accurate, complete and correct in all material respects and
fairly present the information set forth therein; and
(xv) To the extent required by law, the issuance and sale
of the Preferred Securities, the Common Securities, the
Subordinated Debentures and the Guarantee have been duly
authorized and approved by an order of The Public Utilities
Commission of the State of Colorado, and by an order of the
Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935, as amended, and each such order
is final and in full force and effect on the date hereof, the
time for appeal therefrom or review thereof or intervention
with respect thereto having expired; no further approval,
authorization, consent or other order of any public board or
body is legally required (other than in connection or
compliance with the provisions of the securities laws of any
jurisdiction) for the issuance and sale by the Trust of the
Preferred Securities and the Common Securities and the
issuance and sale by PSCo of the Subordinated Debentures and
the Guarantee pursuant to this Agreement.
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 your representatives
and counsel also participated and at which the affairs of PSCo and
the contents of the Registration Statement and the Prospectus were
discussed.
-22-
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, and such counsel have to a large extent
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 (vii), (viii),
(ix), and (xiv) 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 express
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 the
Company in writing by any Underwriter through Xxxxxxx Xxxxx
expressly for use therein or as to the Statements of Eligibility
(Form T-1).
(e) OPINION OF COUNSEL FOR TRUST. Xxxxxxxx, Xxxxxx & Finger,
P.A., special Delaware counsel for the Trust and PSCo, shall have
furnished to the Representatives their written opinion, dated the
Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust
-23-
under the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to own
property and conduct its business as described in the Prospectus;
(iii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (a)
to execute and deliver, and to perform its obligations under,
this Agreement and (b) to issue and perform its obligations
under the Preferred Securities and the Common Securities;
(iv) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its obligations
hereunder, have been duly authorized by all necessary trust
action on the part of the Trust;
(v) The Declaration constitutes a legal, valid and binding
obligation of PSCo and the Trustees, enforceable against PSCo
and the Trustees, in accordance with its terms, subject, as to
enforcement, to the effect upon the Declaration of (a)
bankruptcy, insolvency, moratorium, receivership, liquidation,
fraudulent transfer or conveyance, reorganization and other
similar laws relating to or affecting the remedies and rights
of creditors, (b) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether
considered or applied in a proceeding in equity or at law) and
(c) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(vi) The Preferred Securities have been duly authorized
by the Declaration and are duly and validly issued and, subject
to the qualifications set forth herein, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the
holders of the Preferred Securities, as beneficial owners of the Trust
(the "Securityholders"), are entitled to the same limitation of personal
liability
-24-
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware; and provided that such counsel may note that the
Securityholders may be obligated, pursuant to the Declaration, to
(a) provide indemnity and/or security in connection with and pay a
sum sufficient to cover any taxes or governmental charges arising
from transfers or exchanges of Preferred Securities certificates
and the issuance of replacement Preferred Securities certificates
and (b) provide security and/or indemnity in connection with
requests of or directions to the Property Trustee (as defined in
the Declaration) to exercise its rights and powers under the
Declaration; and under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive or other similar rights;
(vii) the Common Securities have been duly authorized by the
Declaration and are duly and validly issued and fully paid
undivided beneficial interests in the assets of the Trust; and
under the Delaware Business Trust Act and the Declaration, the
issuance of the Common Securities is not subject to preemptive or
other similar rights;
(viii) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the
Trust of the transactions contemplated herein and the compliance by
the Trust with its obligations hereunder do not violate (a) any of
the provisions of the Certificate of Trust of the Trust or the
Declaration or (b) any applicable Delaware law or Delaware
administrative regulation;
(ix) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and the filing of
documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization, approval,
consent or order of any Delaware court or Delaware governmental
authority or Delaware agency is required to be obtained by the
Trust solely as a result of the issuance and sale of the Preferred
Secu-
-25-
rities, the consummation by the Trust of the transactions contemplated
herein or the compliance by the Trust of its obligations hereunder; and
(x) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware trustee as
required by the Delaware Business Trust Act and the filing of
documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, and assuming
that the Trust is treated as a grantor trust for federal
income tax purposes, the Securityholders (other than those
holders of the Preferred Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will
not be liable for any income tax imposed by the State of
Delaware (in rendering the opinions, such counsel need express
no opinion concerning the securities laws of the State of
Delaware).
(f) 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 Representatives shall have received a certificate
of the President or a Vice President of PSCo and of the chief
financial officer, chief accounting officer or 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.
(g) ACCOUNTANT'S COMFORT LETTER. On the date of this
Agreement, Xxxxxx Xxxxxxxx LLP shall have furnished
-26-
to the Representatives a letter, dated the date of this Agreement,
in form and substance satisfactory to the Representatives, 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
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
-27-
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 Representatives 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 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
Representatives, 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
-28-
requirements specified above in such manner as you may deem not to
be material or as may be acceptable to the Representatives with the
consent of Underwriters who have agreed to purchase in the
aggregate 50% or more of the Preferred Securities.
(h) BRING-DOWN COMFORT LETTER. At the Time of Delivery, the
Representatives 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.
(i) MAINTENANCE OF RATING. At the Time of Delivery, the
Preferred Securities shall be rated at least Baa1 by Moody's
Investor's Service ("Moody's") and BBB+ by Standard & Poor's
Ratings Group ("S&P"), a division of XxXxxx-Xxxx, Inc., and PSCo
shall have delivered to the Representatives a letter dated the Time
of Delivery, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Preferred
Securities have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned
to the Preferred Securities or any of PSCo's other securities by
S&P or Moody's, and neither S&P nor Moody's shall have publicly
announced that it has under surveillance or review its rating of
the Preferred Securities or any of PSCo's other securities, other
than any downgrading in the rating assigned to any or all series of
PSCo's outstanding preferred stock by Moody's from Baa1 to Baa2.
(j) EXECUTION OF AGREEMENTS. The Declaration, the Guarantee
and the Indenture shall have been executed and delivered, in each
case in a form reasonably satisfactory to the Representatives.
(k) APPROVAL OF LISTING. The Preferred Securities shall have
been duly listed, subject to official notice of issuance, on the
New York Stock Exchange.
(l) 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 Preferred Securities as
herein contemplated,
-29-
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 Preferred Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(m) 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
Representatives 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.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Trust and
PSCo, jointly and severally, agree 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
-30-
settlement is effected with the written consent of the Trust and 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).
The Trust and 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 Preferred Securities
to a person to 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 the Trust and 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
the Trust and PSCo, their directors, and each of their 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 re-
-31-
liance upon and in conformity with written information furnished to the Trust
or 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, proceeding 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
-32-
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 and the Trust on the one hand and the Underwriters on the other hand
from the offering of the Preferred 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
and the Trust 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 and the Trust on
the one hand and the Underwriters on the other hand in connection with the
offering of the Preferred 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 Preferred 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
Preferred Securities as set forth on such cover.
The relative fault of PSCo and the Trust 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 al-
-33-
leged 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.
PSCo, the Trust 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 Preferred 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 and the Trustee
of the Trust who signed the Registration Statement, and each person, if any,
who controls the Company or the Trust 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
Preferred Securities set forth opposite their respective names in Schedule A
hereto and not joint.
-34-
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 Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives 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 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 Representatives, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred 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 suffi-
cient to justify, in accordance with the provisions hereof, the cancellation
or termination of its or their obligations hereunder) to purchase and pay for
the Preferred Securities which it or they have agreed to purchase as provided
in paragraph 4 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 Preferred 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
(b) if the aggregate principal amount of the Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Preferred 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.
-36-
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 Preferred Securities shall be effected as provided in
clause (a) or (b) above, (a) either PSCo or the Representatives 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 Representatives (or the representative of the
Non-Defaulting Underwriters and the substituted purchasers, if any, if the
Representatives shall be in default) 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 Preferred 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 Representatives c/o Merrill Xxxxx
at North Tower, World Financial Center, New York, New York 10281-1201,
attention of: Xxxxxx Xxxxx) (telecopy number: 212-449-8636); and notices to
PSCo or the Trust 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, 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 Preferred
Securities from any
-37-
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.
-38-
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,
PSCO CAPITAL TRUST I
By: Public Service Company
of Colorado, as Depositor
By: /s/ N.E. Xxxxxx
---------------------------------
Name:
Title:
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Treasurer and Director of Finance
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXXX & SONS, INC.
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxx Xxxxx
---------------------------------------
Authorized Signatory
For itself and as Representatives of the other Underwriters named in Schedule
A hereto.
SCHEDULE I
Total Number of
Name of Underwriter Securities to Be Purchased
------------------- --------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated................. 1,365,000
X.X. Xxxxxxx & Sons Inc. .............. 1,365,000
Xxxxxx Xxxxxxx & Co.
Incorporated......................... 1,365,000
PaineWebber Incorporated............... 1,365,000
Advest, Inc. .......................... 100,000
BT Alex. Xxxxx Incorporated............ 100,000
Xxxxxx X. Xxxxx & Co.
Incorporated......................... 100,000
Bear, Xxxxxxx & Co. Inc. .............. 100,000
X.X. Xxxxxxxx & Co. ................... 100,000
CIBC Xxxxxxxxxxx Corp. ................ 100,000
Xxxxx & Company........................ 100,000
Xxxx Xxxxxxxx Xxxxxxx.................. 100,000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation............... 100,000
EVEREN Securities, Inc. ............... 100,000
Xxxxxxxxxx & Co. Inc. ................. 100,000
Xxxx Xxxxx Xxxx Xxxxxx,
Incorporated......................... 100,000
XxXxxxxx & Company Securities, Inc. ... 100,000
Xxxxxx Xxxxxx & Company,
Inc. ................................ 100,000
Olde & Co., Incorporated............... 100,000
Xxxxx Xxxxxxx Inc. .................... 100,000
Xxxxxxx Xxxxx & Associates,
Inc. ................................ 100,000
The Xxxxxxxx-Xxxxxxxx Company,
LLC.................................. 100,000
Xxxxxx, Xxxxxxxx & Company,
Incorporated......................... 100,000
Stone & Xxxxxxxxx...................... 100,000
TD Securities (USA) Inc. .............. 100,000
Xxxxxx Xxxxxxx Incorporated............ 100,000
Wheat First Securities,
Inc. ................................ 100,000
---------
Total............................ 7,760,000
---------
---------
