Exhibit 4.01
PUBLIC SERVICE
COMPANY
OF COLORADO
TO
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
Supplemental Indenture No. 18
Dated as of August 1, 2008
Supplemental to the Indenture
dated as of October 1, 1993
Establishing the Securities of
Series No. 18 and Series No. 19,
designated 5.80% First Mortgage Bonds, Series No. 18 due
2018 and
6.50% First Mortgage Bonds, Series No. 19 due 2038,
respectively
SUPPLEMENTAL INDENTURE NO.
18 , dated as of
August 1, 2008 between PUBLIC SERVICE COMPANY OF
COLORADO , a corporation duly organized and existing under the
laws of the State of Colorado (hereinafter sometimes called the
“Company”), and U.S. BANK TRUST NATIONAL ASSOCIATION
(formerly First Trust of New York, National Association) , a
national banking association, as successor trustee (hereinafter
sometimes called the “Trustee”) to Morgan Guaranty
Trust Company of New York under the Indenture, dated as of
October 1, 1993 (hereinafter called the “Original
Indenture”), as previously supplemented and as further
supplemented by this Supplemental Indenture No. 18. The
Original Indenture and any and all indentures and all other
instruments supplemental thereto are hereinafter sometimes
collectively called the “Indenture”.
Recitals of the
Company
The Original Indenture was
authorized, executed and delivered by the Company to provide for
the issuance from time to time of its Securities (such term and all
other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued
in one or more series as contemplated therein, and to provide
security for the payment of the principal of and premium, if any,
and interest, if any, on the Securities. The Original
Indenture has been recorded in the office of the Clerk and Recorder
of each county in the State of Colorado in which the Company owns
real property that is used in or in connection with the Electric
Utility Business, as more fully set forth in Schedule A
hereto.
The Company has heretofore executed
and delivered to the Trustee the Supplemental Indentures referred
to in Schedule B hereto for the purpose of establishing a series of
bonds and appointing the successor Trustee.
The Company desires to establish two
new series of Securities to be designated “5.80% First
Mortgage Bonds, Series No. 18 due 2018” and
“6.50% First Mortgage Bonds, Series No. 19 due
2038,” such series of Securities to be hereinafter sometimes
called “Series No. 18” and
“Series No. 19,” respectively.
The Company has duly authorized the
execution and delivery of this Supplemental Indenture No. 18
to establish the Securities of Series No. 18 and
Series No. 19 and has duly authorized the issuance of
such Securities; and all acts necessary to make this Supplemental
Indenture No. 18 a valid agreement of the Company, and to make
the Securities of Series No. 18 and
Series No. 19 valid obligations of the Company, have been
performed.
Granting Clauses
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE NO. 18 WITNESSETH , that, in consideration of the premises and of
the purchase of the Securities by the Holders thereof, and in order
to secure the payment of the principal of and premium, if any, and
interest, if any, on all Securities from time to time Outstanding
and the performance of the covenants contained therein and in the
Indenture and to declare the terms and conditions on which such
Securities are secured, the Company hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets
over and confirms to the Trustee, and grants to the Trustee a
security interest in, the following:
Granting Clause
First
All right, title and interest of the
Company, as of the date of the execution and delivery of this
Supplemental Indenture No. 18, in and to property (other than
Excepted Property), real, personal and mixed and wherever situated,
in any case used or to be used in or in connection with the
Electric Utility Business (whether or not such use is the
sole
use of such property), including
without limitation (a) all lands and interest in land
described or referred to in Schedule C hereto; (b) all other
lands, easements, servitudes, licenses, permits, rights of way and
other rights and interests in or relating to real property used or
to be used in or in connection with the Electric Utility Business
or relating to the occupancy or use of such real property, subject
however, to the exceptions and exclusions set forth in clause
(a) of Granting Clause First of the Original Indenture;
(c) all plants, generators, turbines, engines, boilers, fuel
handling and transportation facilities, air and water pollution
control and sewage and solid waste disposal facilities and other
machinery and facilities for the generation of electric energy;
(d) all switchyards, lines, towers, substations, transformers
and other machinery and facilities for the transmission of electric
energy; (e) all lines, poles, conduits, conductors, meters,
regulators and other machinery and facilities for the distribution
of electric energy; (f) all buildings, offices, warehouses and
other structures used or to be used in or in connection with the
Electric Utility Business; (g) all pipes, cables, insulators,
ducts, tools, computers and other data processing and/or storage
equipment and other equipment, apparatus and facilities used or to
be used in or in connection with the Electric Utility Business;
(h) any or all of the foregoing properties in the process of
construction; and (i) all other property, of whatever kind and
nature, ancillary to or otherwise used or to be used in conjunction
with any or all of the foregoing or otherwise, directly or
indirectly, in furtherance of the Electric Utility
Business;
Granting Clause
Second
Subject to the applicable exceptions
permitted by Section 810(c), Section 1303 and
Section 1305 of the Original Indenture, all property (other
than Excepted Property) of the kind and nature described in
Granting Clause First which may be hereafter acquired by the
Company, it being the intention of the Company that all such
property acquired by the Company after the date of the execution
and delivery of this Supplemental Indenture No. 18 shall be as
fully embraced within and subjected to the Lien hereof as if such
property were owned by the Company as of the date of the execution
and delivery of this Supplemental Indenture No. 18;
Granting Clause
Fourth
All other property of whatever kind
and nature subjected or required to be subjected to the Lien of the
Indenture by any of the provisions thereof;
This Instrument shall constitute a
financing statement under the Colorado Uniform Commercial Code (the
“UCC”) to be filed in the real estate records, and is
filed as a fixture filing under the UCC covering goods which are,
or are to become, fixtures on the real property described herein,
in the Original Indenture and all supplements to the Original
Indenture;
Excepted Property
Expressly excepting and excluding,
however, from the Lien and operation of the Indenture all Excepted
Property of the Company, whether now owned or hereafter
acquired;
TO HAVE AND TO HOLD
all such property, real, personal
and mixed, unto the Trustee, its successors in trust and their
assigns forever;
2
SUBJECT, HOWEVER,
to (a) Liens existing at the
date of the execution and delivery of the Original Indenture,
(b) as to property acquired by the Company after the date of
the execution and delivery of the Original Indenture, Liens
existing or placed thereon at the time of the acquisition thereof
(including, but not limited to, the Lien of any Class A
Mortgage and purchase money Liens), (c) Retained Interests and
(d) any other Permitted Liens, it being understood that, with
respect to any property which was at the date of execution and
delivery of the Original Indenture or thereafter became or
hereafter becomes subject to the Lien of any Class A Mortgage,
the Lien of the Indenture shall at all times be junior, subject and
subordinate to the Lien of such Class A Mortgage;
IN TRUST,
NEVERTHELESS, for the
equal and proportionate benefit and security of the Holders from
time to time of all Outstanding Securities without any priority of
any such Security over any other such Security;
PROVIDED, HOWEVER,
that the right, title and interest
of the Trustee in and to the Mortgaged Property shall cease,
terminate and become void in accordance with, and subject to the
conditions set forth in, Article Nine of the Original
Indenture, and if, thereafter, the principal of and premium, if
any, and interest, if any, on the Securities shall have been paid
to the Holders thereof, or shall have been paid to the Company
pursuant to Section 603 of the Original Indenture, then and in
that case the Indenture shall terminate, and the Trustee shall
execute and deliver to the Company such instruments as the Company
shall require to evidence such termination; otherwise the
Indenture, and the estate and rights thereby granted shall be and
remain in full force and effect; and
THE PARTIES HEREBY FURTHER
COVENANT AND AGREE as
follows:
ARTICLE ONE
Securities of Series No. 18
There are hereby established the
Securities of Series No. 18, which shall have the terms
and characteristics set forth below (the lettered subdivisions set
forth below corresponding to the lettered subdivisions of
Section 301 of the Original Indenture):
(a)
the title of the
Securities of Series No. 18 shall be “5.80% First
Mortgage Bonds, Series No. 18 due
2018”;
(b)
the Securities of
Series No. 18 shall initially be authenticated and
delivered in the aggregate principal amount of $300,000,000. The
Securities of Series No. 18 may be reopened and
additional Securities of Series No. 18 may be issued in
excess of the amount initially authenticated and delivered,
provided that such additional Securities of Series No. 18
will contain the same terms (including the Stated Maturity and
interest rate) as the other Securities of Series No. 18.
Any such additional Securities of Series No. 18, together
with the Securities of Series No. 18 initially
authenticated, shall constitute a single series for purposes of the
Indenture and shall be limited to an aggregate principal amount of
$550,000,000;
(c)
interest on the
Securities of Series No. 18 shall be payable to the
Persons in whose names such Securities are registered at the close
of business on the Regular Record Date for such interest, except as
otherwise expressly provided in the form of such Securities
attached as Exhibit A hereto;
(d)
the principal of
the Securities of Series No. 18 shall be payable on
August 1, 2018, the Stated Maturity for
Series No. 18;
3
(e)
the Securities of
Series No. 18 shall bear interest at a rate of 5.80% per
annum; interest shall accrue on the Securities of
Series No. 18 from August 13, 2008 or the most
recent date to which interest has been paid or duly provided for;
the Interest Payment Dates for such Securities shall be
February 1 and August 1 in each year, commencing
February 1, 2009 and the Regular Record Dates with respect to
the Interest Payment Dates for such Securities shall be
January 15 and July 15 in each year, respectively
(whether or not a Business Day);
(f)
the Corporate
Trust Office of U.S. Bank Trust National Association in New York,
New York shall be the place at which (i) the principal of,
premium, if any, and interest, if any, on the Securities of
Series No. 18 shall be payable, (ii) registration of
transfer of such Securities may be effected, (iii) exchanges
of such Securities may be effected and (iv) notices and
demands to or upon the Company in respect of such Securities and
the Indenture may be served; and U.S. Bank Trust National
Association shall be the Security Registrar for such Securities;
provided, however, that the Company reserves the right to change,
by one or more Officer’s Certificates, any such place or the
Security Registrar; and provided, further, that the Company
reserves the right to designate, by one or more Officer’s
Certificates, its principal office in Denver, Colorado as any such
place or itself as the Security Registrar;
(g)
the Securities of
Series No. 18 shall be redeemable at the option of the
Company at any time prior to their Maturity, in whole or in part,
at a redemption price equal to the greater of (i) 100% of the
principal amount thereof to be redeemed, or (ii) the sum of
the present values of the remaining scheduled payments of principal
and interest on such Securities to be redeemed (excluding the
portion of any such interest accrued to the Redemption Date),
discounted to the Redemption Date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 30 basis points, plus in each case, accrued and unpaid
interest to the Redemption Date. For purposes hereof, the
following defined terms shall have the meaning ascribed to
them:
“Treasury Yield” means,
for any Redemption Date (1) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded U.S.
Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury Yield
will be interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month); or (2) if such
release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the
rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date. The Treasury Yield for any Redemption Date
shall be calculated on the third Business Day preceding such
Redemption Date.
“Comparable Treasury
Issue” means the United States Treasury security selected by
the Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities of Series No. 18
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining
term of the Securities of Series No. 18.
4
“Comparable Treasury
Price” means (i) the average of the Reference Treasury
Dealer Quotations for the Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations for such
Redemption Date or (ii) if the Trustee obtains fewer than four
Reference Treasury Dealer Quotations for the Redemption Date, the
average of all of the Reference Treasury Dealer Quotations for such
Redemption Date.
“Independent Investment
Banker” means Goldman, Sachs & Co. or Lehman
Brothers Inc. or their respective successors or, if such firms or
their successors are unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee after consultation with
the Company.
“Reference Treasury
Dealer” means (1) each of Goldman, Sachs & Co.
and Lehman Brothers Inc. and any other Primary Treasury Dealer
designated by, and not affiliated with, Goldman, Sachs &
Co. or Lehman Brothers Inc. or their respective successors,
provided, however, that if Goldman, Sachs & Co. or Lehman
Brothers Inc. or any of their respective designees ceases to be a
Primary Treasury Dealer, the Company will appoint another Primary
Treasury Dealer as a substitute and (2) any other Primary
Treasury Dealer selected by the Company after consultation with an
Independent Investment Banker.
“Primary Treasury
Dealer” means any primary U.S. Government securities dealer
in the United States.
“Reference Treasury Dealer
Quotations” means, for each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment
Banker by the Reference Treasury Dealer at 5:00 p.m. New York
City time on the third Business Day preceding the Redemption
Date.
(h)
not
applicable;
(i)
the Securities of
Series No. 18 shall be issuable in denominations of
$2,000 and multiples of $1,000 in excess thereof;
(j)
not
applicable;
(k)
not
applicable;
(l)
not
applicable;
(m)
not
applicable;
(n)
not
applicable;
(o)
not
applicable;
(p)
not
applicable;
(q)
the Securities of
Series No. 18 are to be initially registered in the name
of Cede & Co., as nominee for The Depository Trust Company
(the “Depositary”). Such Securities shall not be
transferable or exchangeable, nor shall any purported transfer be
registered, except as follows:
5
(i)
such Securities
may be transferred in whole, and appropriate registration of
transfer effected, if such transfer is by such nominee to the
Depositary, or by the Depositary to another nominee thereof, or by
any nominee of the Depositary to any other nominee thereof, or by
the Depositary or any nominee thereof to any successor securities
depositary or any nominee thereof; and
(ii)
such Securities
may be exchanged for definitive Securities registered in the
respective names of the beneficial holders thereof, and thereafter
shall be transferable without restriction, if:
(A)
the Depositary,
or any successor securities depositary, shall have notified the
Company and the Trustee that it is unwilling or unable to continue
to act as securities depositary with respect to such Securities or
the Depositary has ceased to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and the Trustee
shall not have been notified by the Company within ninety (90) days
of the identity of a successor securities depositary with respect
to such Securities; or
(B)
the Company shall
have delivered to the Trustee a Company Order to the effect that
such Securities shall be so exchangeable on and after a date
specified therein; or
(C)
(1) an
Event of Default shall have occurred and be continuing,
(2) the Trustee shall have given notice of such Event of
Default pursuant to Section 1102 of the Original Indenture and
(3) there shall have been delivered to the Company and the
Trustee an Opinion of Counsel to the effect that the interests of
the beneficial owners of such Securities in respect thereof will be
materially impaired unless such owners become Holders of definitive
Securities;
(r)
not
applicable;
(s)
no service charge
shall be made for the registration of transfer or exchange of the
Securities of Series No. 18; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the exchange
or transfer;
(t)
not
applicable;
(u)
(i)
If the Company
shall have caused the Company’s indebtedness in respect of
any Securities of Series No. 18 to have been satisfied
and discharged prior to the Maturity of such Securities, as
provided in Section 901 of the Original Indenture, the Company
shall, promptly after the date of such satisfaction and discharge,
give a notice to each Person who was a Holder of any of such
Securities on such date stating (A)(1) the aggregate principal
amount of such Securities and (2) the aggregate amount of any
money (other than amounts, if any, deposited in respect of accrued
interest on such Securities) and the aggregate principal amount of,
the rate or rates of interest on, and the aggregate fair market
value of, any Eligible Obligations deposited pursuant to
Section 901 of the Original Indenture with respect to such
Securities and (B) that the Company will provide (and the
Company shall promptly so provide) to such Person, or
any
6
beneficial owner
of such Securities holding through such Person (upon written
request to the Company sent to an address specified in such
notice), such other information as such Person or beneficial owner,
as the case may be, reasonably may request in order to enable it to
determine the federal income tax consequences to it resulting from
the satisfaction and discharge of the Company’s indebtedness
in respect of such Securities. Thereafter, the Company shall,
within forty-five (45) days after the end of each calendar year,
give to each Person who at any time during such calendar year was a
Holder of such Securities a notice containing (X) such
information as may be necessary to enable such Person to report its
income, gain or loss for federal income tax purposes with respect
to such Securities or the assets held on deposit in respect thereof
during such calendar year or the portion thereof during which such
Person was a Holder of such Securities, as the case may be (such
information to be set forth for such calendar year as a whole and
for each month during such year) and (Y) a statement to the
effect that the Company will provide (and the Company shall
promptly so provide) to such Person, or any beneficial owner of
such Securities holding through such Person (upon written request
to the Company sent to an address specified in such notice), such
other information as such Person or beneficial owner, as the case
may be, reasonably may request in order to enable it to determine
its income, gain or loss for federal income tax purposes with
respect to such Securities or such assets for such year or portion
thereof, as the case may be. The obligation of the Company to
provide or cause to be provided information for purposes of income
tax reporting by any Person as described in the first two sentences
of this paragraph shall be deemed to have been satisfied to the
extent that the Company has provided or caused to be provided
substantially comparable information pursuant to any requirements
of the Internal Revenue Code of 1986, as amended from time to time
(the “Code”) and United States Treasury regulations
thereunder.
(ii)
Notwithstanding
the provisions of subparagraph (i) above, the Company shall
not be required to give any notice specified in such subparagraph
or to otherwise furnish any of the information contemplated therein
if the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of the satisfaction and discharge of the Company’s
indebtedness in respect of such Securities and such Holders will be
subject to federal income taxation on the same amounts and in the
same manner and at the same times as if such satisfaction and
discharge had not occurred.
(iii)
Anything in this
clause (u) to the contrary notwithstanding, the Company shall
not be required to give any notice specified in subparagraph
(i) or to otherwise furnish the information contemplated
therein or to deliver any Opinion of Counsel contemplated by
subparagraph (ii) if the Company shall have caused Securities
of Series No. 18 to be deemed to have been paid for
purposes of the Indenture, as provided in Section 901 of the
Original Indenture, but shall not have effected the satisfaction
and discharge of its indebtedness in respect of such Securities
pursuant to such Section.
(v)
The Securities of
Series No. 18 shall be substantially in the form attached
hereto as Exhibit A and shall have such further terms as are
set forth in such form.
7
ARTICLE TWO
Securities of Series No. 19
There are hereby established the
Securities of Series No. 19, which shall have the terms
and characteristics set forth below (the lettered subdivisions set
forth below corresponding to the lettered subdivisions of
Section 301 of the Original Indenture):
(a)
the title of the
Securities of Series No. 19 shall be “6.50% First
Mortgage Bonds, Series No. 19 due
2038”;
(b)
the Securities of
Series No. 19 shall initially be authenticated and
delivered in the aggregate principal amount of $300,000,000.
The Securities of Series No. 19 may be reopened and
additional Securities of Series No. 19 may be issued in
excess of the amount initially authenticated and delivered,
provided that such additional Securities of Series No. 19
will contain the same terms (including the Stated Maturity and
interest rate) as the other Securities of Series No. 19.
Any such additional Securities of Series No. 19, together
with the Securities of Series No. 19 initially
authenticated, shall constitute a single series for purposes of the
Indenture and shall be limited to an aggregate principal amount of
$550,000,000;
(c)
interest on the
Securities of Series No. 19 shall be payable to the
Persons in whose names such Securities are registered at the close
of business on the Regular Record Date for such interest, except as
otherwise expressly provided in the form of such Securities
attached as Exhibit B hereto;
(d)
the principal of
the Securities of Series No. 19 shall be payable on
August 1, 2038 the Stated Maturity for
Series No. 19;
(e)
the Securities of
Series No. 19 shall bear interest at a rate of 6.50% per
annum; interest shall accrue on the Securities of
Series No. 19 from August 13, 2008 or the most
recent date to which interest has been paid or duly provided for;
the Interest Payment Dates for such Securities shall be
February 1 and August 1 in each year, commencing
February 1, 2009 and the Regular Record Dates with respect to
the Interest Payment Dates for such Securities shall be
January 15 and July 15 in each year, respectively
(whether or not a Business Day);
(f)
the Corporate
Trust Office of U.S. Bank Trust National Association in New York,
New York shall be the place at which (i) the principal of,
premium, if any, and interest, if any, on the Securities of
Series No. 19 shall be payable, (ii) registration of
transfer of such Securities may be effected, (iii) exchanges
of such Securities may be effected and (iv) notices and
demands to or upon the Company in respect of such Securities and
the Indenture may be served; and U.S. Bank Trust National
Association shall be the Security Registrar for such Securities;
provided, however, that the Company reserves the right to change,
by one or more Officer’s Certificates, any such place or the
Security Registrar; and provided, further, that the Company
reserves the right to designate, by one or more Officer’s
Certificates, its principal office in Denver, Colorado as any such
place or itself as the Security Registrar;
(g)
the Securities of
Series No. 19 shall be redeemable at the option of the
Company at any time prior to their Maturity, in whole or in part,
at a redemption price equal to the greater of (i) 100% of the
principal amount thereof to be redeemed, or (ii) the sum of
the
8
present values of
the remaining scheduled payments of principal and interest on such
Securities to be redeemed (excluding the portion of any such
interest accrued to the Redemption Date), discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 30
basis points, plus in each case, accrued and unpaid interest to the
Redemption Date. For purposes hereof, the following defined
terms shall have the meaning ascribed to them:
“Treasury Yield” means,
for any Redemption Date (1) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded U.S.
Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury Yield
will be interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month); or (2) if such
release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the
rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date. The Treasury Yield for any Redemption Date
shall be calculated on the third Business Day preceding such
Redemption Date.
“Comparable Treasury
Issue” means the United States Treasury security selected by
the Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities of Series No. 19
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining
term of the Securities of Series No. 19.
“Comparable Treasury
Price” means (i) the average of the Reference Treasury
Dealer Quotations for the Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations for such
Redemption Date or (ii) if the Trustee obtains fewer than four
Reference Treasury Dealer Quotations for the Redemption Date, the
average of all of the Reference Treasury Dealer Quotations for such
Redemption Date.
“Independent Investment
Banker” means Goldman, Sachs & Co. or Lehman
Brothers Inc. or their respective successors or, if such firms or
their successors are unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee after consultation with
the Company.
“Reference Treasury
Dealer” means (1) each of Goldman, Sachs & Co.
and Lehman Brothers Inc. and any other Primary Treasury Dealer
designated by, and not affiliated with, Goldman, Sachs &
Co. or Lehman Brothers Inc. or their respective successors,
provided, however, that if Goldman, Sachs & Co. or Lehman
Brothers Inc. or any of their respective designees ceases to be a
Primary Treasury Dealer, the Company will appoint another Primary
Treasury Dealer as a substitute and (2) any other Primary
Treasury Dealer selected by the Company after consultation with an
Independent Investment Banker.
“Primary Treasury
Dealer” means any primary U.S. Government securities dealer
in the United States.
9
“Reference Treasury Dealer
Quotations” means, for each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment
Banker by the Reference Treasury Dealer at 5:00 p.m. New York
City time on the third Business Day preceding the Redemption
Date.
(h)
not applicable;
(i)
the Securities of Series No. 19 shall be issuable in
denominations of $2,000 and multiples of $1,000 in excess
thereof;
(j)
not applicable;
(k)
not applicable;
(l)
not applicable;
(m)
not applicable;
(n)
not applicable;
(o)
not applicable;
(p)
not applicable;
(q)
the Securities of Series No. 19 are to be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the “Depositary”). Such
Securities shall not be transferable or exchangeable, nor shall any
purported transfer be registered, except as follows:
(i)
such Securities may be transferred in whole, and appropriate
registration of transfer effected, if such transfer is by such
nominee to the Depositary, or by the Depositary to another nominee
thereof, or by any nominee of the Depositary to any other nominee
thereof, or by the Depositary or any nominee thereof to any
successor securities depositary or any nominee thereof;
and
(ii)
such Securities may be exchanged for definitive Securities
registered in the respective names of the beneficial holders
thereof, and thereafter shall be transferable without restriction,
if:
(A)
the Depositary, or any successor securities depositary, shall have
notified the Company and the Trustee that it is unwilling or unable
to continue to act as securities depositary with respect to such
Securities or the Depositary has ceased to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended,
and the Trustee shall not have been notified by the Company within
ninety (90) days of the identity of a successor securities
depositary with respect to such Securities; or
(B)
the Company shall have delivered to the Trustee a Company Order to
the effect that such Securities shall be so exchangeable on and
after a date specified therein; or
10
(C)
(1) an Event of Default shall have occurred and be continuing,
(2) the Trustee shall have given notice of such Event of
Default pursuant to Section 1102 of the Original Indenture and
(3) there shall have been delivered to the Company and the
Trustee an Opinion of Counsel to the effect that the interests of
the beneficial owners of such Securities in respect thereof will be
materially impaired unless such owners become Holders of definitive
Securities;
(r)
not applicable;
(s)
no service charge shall be made for the registration of transfer or
exchange of the Securities of Series No. 19; provided,
however, that the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
with the exchange or transfer;
(t)
not applicable;
(u)
(i)
If the Company shall have caused the Company’s indebtedness
in respect of any Securities of Series No. 19 to have
been satisfied and discharged prior to the Maturity of such
Securities, as provided in Section 901 of the Original
Indenture, the Company shall, promptly after the date of such
satisfaction and discharge, give a notice to each Person who was a
Holder of any of such Securities on such date stating
(A)(1) the aggregate principal amount of such Securities and
(2) the aggregate amount of any money (other than amounts, if
any, deposited in respect of accrued interest on such Securities)
and the aggregate principal amount of, the rate or rates of
interest on, and the aggregate fair market value of, any Eligible
Obligations deposited pursuant to Section 901 of the Original
Indenture with respect to such Securities and (B) that the
Company will provide (and the Company shall promptly so provide) to
such Person, or any beneficial owner of such Securities holding
through such Person (upon written request to the Company sent to an
address specified in such notice), such other information as such
Person or beneficial owner, as the case may be, reasonably may
request in order to enable it to determine the federal income tax
consequences to it resulting from the satisfaction and discharge of
the Company’s indebtedness in respect of such
Securities. Thereafter, the Company shall, within forty-five
(45) days after the end of each calendar year, give to each Person
who at any time during such calendar year was a Holder of such
Securities a notice containing (X) such information as may be
necessary to enable such Person to report its income, gain or loss
for federal income tax purposes with respect to such Securities or
the assets held on deposit in respect thereof during such calendar
year or the portion thereof during which such Person was a Holder
of such Securities, as the case may be (such information to be set
forth for such calendar year as a whole and for each month during
such year) and (Y) a statement to the effect that the Company
will provide (and the Company shall promptly so provide) to such
Person, or any beneficial owner of such Securities holding through
such Person (upon written request to the Company sent to an address
specified in such notice), such other information as such Person or
beneficial owner, as the case may be, reasonably may request in
order to enable it to determine its income, gain or loss for
federal income tax purposes with respect to such Securities or such
assets for such year or portion thereof, as the case may be.
The obligation of the Company to provide or cause to be provided
information for purposes of income tax reporting by any Person
as
11
described in the
first two sentences of this paragraph shall be deemed to have been
satisfied to the extent that the Company has provided or caused to
be provided substantially comparable information pursuant to any
requirements of the Internal Revenue Code of 1986, as amended from
time to time (the “Code”) and United States Treasury
regulations thereunder.
(ii)
Notwithstanding the provisions of subparagraph (i) above, the
Company shall not be required to give any notice specified in such
subparagraph or to otherwise furnish any of the information
contemplated therein if the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
such Securities will not recognize income, gain or loss for federal
income tax purposes as a result of the satisfaction and discharge
of the Company’s indebtedness in respect of such Securities
and such Holders will be subject to federal income taxation on the
same amounts and in the same manner and at the same times as if
such satisfaction and discharge had not occurred.
(iii)
Anything in this clause (u) to the contrary notwithstanding,
the Company shall not be required to give any notice specified in
subparagraph (i) or to otherwise furnish the information
contemplated therein or to deliver any Opinion of Counsel
contemplated by subparagraph (ii) if the Company shall have
caused Securities of Series No. 19 to be deemed to have
been paid for purposes of the Indenture, as provided in
Section 901 of the Original Indenture, but shall not have
effected the satisfaction and discharge of its indebtedness in
respect of such Securities pursuant to such Section.
The Securities of
Series No. 19 shall be substantially in the form attached
hereto as Exhibit B and shall have such further terms as are
set forth in such form.
ARTICLE THREE
Miscellaneous Provisions
This Supplemental Indenture
No. 18 is a supplement to the Original Indenture. As
previously supplemented and further supplemented by this
Supplemental Indenture No. 18, the Original Indenture is in
all respects ratified, approved and confirmed, and the Original
Indenture, all previous supplements thereto and this Supplemental
Indenture No. 18 shall together constitute one and the same
instrument.
12
IN WITNESS WHEREOF
, the parties hereto have caused
this Supplemental Indenture No. 18 to be duly executed as of
the day and year first above written.
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PUBLIC SERVICE COMPANY OF COLORADO
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By:
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/s/ George E. Tyson II
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Name: George E. Tyson II
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Title: Vice President and
Treasurer
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STATE OF MINNESOTA
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)
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) ss:
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COUNTY OF HENNEPIN
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)
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The foregoing was acknowledged
before me this 1st day of August, 2008, by George E. Tyson II, the
Vice President and Treasurer of Public Service Company of Colorado,
a corporation organized under the laws of Colorado, on behalf of
the corporation.
Witness my hand and official
seal.
My commission expires:
January 31, 2010
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/s/ Sharon M. Quellhorst
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Name: Sharon M. Quellhorst
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Notary Public
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13
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U.S. BANK TRUST NATIONAL ASSOCIATION,
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Trustee
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By:
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/s/ K. Wendy Kumar
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Name: K. Wendy Kumar
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Title: Vice President
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STATE OF NEW YORK
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)
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) ss:
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COUNTY OF QUEENS
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)
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On the 1st day of August, 2008,
before me personally came K. Wendy Kumar, to me known, who, being
by me duly sworn, did depose and say that she is a Vice President
of U.S. Bank Trust National Association, the banking
association described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of
the Board of Directors of said banking association.
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/s/ Carolyn R. Sinclair
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Name: Carolyn R. Sinclair
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Notary Public, State of New York
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Commission Expires: December 20,
2009
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14
EXHIBIT A
FORM OF SECURITY
(See legend at the end of this Security for
restrictions on transfer)
PUBLIC SERVICE COMPANY OF COLORADO
First Mortgage Bond, Series No. 18
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Original Interest Accrual
Date
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August 13, 2008
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Interest Rate:
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5.80% per annum
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Stated Maturity:
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August 1, 2018
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Interest Payment Dates:
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February 1 and August 1
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Regular Record Dates:
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January 15 and July 15
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This Security is not a Discount
Security
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within the meaning of the within-mentioned
Indenture
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Principal Amount
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Registered
No.
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$
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PUBLIC SERVICE COMPANY OF COLORADO,
a corporation duly organized and existing under the laws of the
State of Colorado (herein called the “Company,” which
term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay
to
, or registered assigns, the principal sum
of
Dollars on the Stated Maturity specified above,
and to pay interest thereon from the Original Interest Accrual Date
specified above or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in
arrears on the Interest Payment Dates specified above in each year,
commencing February 1, 2009 and at Maturity, at the Interest
Rate per annum specified above, until the principal hereof is paid
or duly provided for. The interest so payable, and paid or
duly provided for, on any Interest Payment Date shall, as provided
in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date specified above
(whether or not a Business Day) next preceding such Interest
Payment Date. Notwithstanding the foregoing, interest payable
at Maturity shall be paid to the Person to whom principal shall be
paid. Except as otherwise provided in said Indenture, any
such interest not so paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice of which shall be given
to Holders of Securities of this series not less than 15 days prior
to such Special Record Date, or be paid in such other manner as
permitted by the Indenture.
A-1
Payment of the principal of this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the Corporate Trust Office of U.S.
Bank Trust National Association, in New York, New York or at such
other office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest on this
Security (other than interest at Maturity) shall be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, except that if such
Person shall be a securities depositary, such payment may be made
by such other means in lieu of check as shall be agreed upon by the
Company, the Trustee and such Person. Payment of the
principal of and interest on this Security, as aforesaid, shall be
made in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public
and private debts.
This Security is one of a duly
authorized issue of securities of the Company (herein called the
“Securities”), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of
October 1, 1993 (such Indenture as originally executed and
delivered and as supplemented or amended from time to time
thereafter, together with any constituent instruments establishing
the terms of particular Securities, being herein called the
“Indenture”), between the Company and U.S. Bank Trust
National Association (formerly First Trust of New York, National
Association) as successor trustee (herein called the
“Trustee,” which term includes any successor trustee
under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of
the property mortgaged, pledged and held in trust, the nature and
extent of the security and the respective rights, limitations of
rights, duties and immunities of the Company, the Trustee and the
Holders of the Securities thereunder and of the terms and
conditions upon which the Securities are, and are to be,
authenticated and delivered and secured. The acceptance of
this Security shall be deemed to constitute the consent and
agreement by the Holder hereof to all of the terms and provisions
of the Indenture. This Security is one of the series
designated above.
If any Interest Payment Date or the
Stated Maturity shall not be a Business Day (as hereinafter
defined), payment of the amounts due on this Security on such date
may be made on the next succeeding Business Day; and, if such
payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after
such Interest Payment Date or Stated Maturity, as the case may be,
to such Business Day.
This Security shall be redeemable at
the option of the Company at any time prior to Maturity, in whole
or in part, at a redemption price equal to the greater of
(i) 100% of the principal amount hereof to be redeemed, or
(ii) the sum of the present values of the remaining scheduled
payments of principal and interest on this Security to be redeemed
(excluding the portion of any such interest accrued to the
Redemption Date), discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield plus 30 basis points, plus in
each case, accrued and unpaid interest to the Redemption
Date. For purposes hereof, the following defined terms shall
have the meaning ascribed to them:
“Treasury Yield” means,
for any Redemption Date (1) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded U.S.
Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury Yield
will be interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month); or (2) if such
release (or any successor release) is not published during the week
preceding the calculation date or does
A-2
not contain such yields, the rate per annum
equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date. The Treasury Yield for any Redemption Date
shall be calculated on the third Business Day preceding such
Redemption Date.
“Comparable Treasury
Issue” means the United States Treasury security selected by
the Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities of Series No. 18
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining
term of the Securities of Series No. 18.
“Comparable Treasury
Price” means (i) the average of the Reference Treasury
Dealer Quotations for the Redemption Date, after excluding the
highest and lowest Reference Treasury Dealer Quotations for such
Redemption Date or (ii) if the Trustee obtains fewer than four
Reference Treasury Dealer Quotations for the Redemption Date, the
average of all of the Reference Treasury Dealer Quotations for such
Redemption Date.
“Independent Investment
Banker” means Goldman, Sachs & Co. or Lehman
Brothers Inc. or their respective successors or, if such firms or
their successors are unwilling or unable to select the Comparable
Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee after consultation with
the Company.
“Reference Treasury
Dealer” means (1) each of Goldman, Sachs & Co.
and Lehman Brothers Inc. and any other Primary Treasury Dealer
designated by, and not affiliated with, Goldman, Sachs &
Co. or Lehman Brothers Inc. or their respective successors,
provided, however, that if Goldman, Sachs & Co. or Lehman
Brothers Inc. or any of their respective designees ceases to be a
Primary Treasury Dealer, the Company will appoint another Primary
Treasury Dealer as a substitute and (2) any other Primary
Treasury Dealer selected by the Company after consultation with an
Independent Investment Banker.
“Primary Treasury
Dealer” means any primary U.S. Government securities dealer
in the United States.
“Reference Treasury Dealer
Quotations” means, for each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment
Banker by the Reference Treasury Dealer at 5:00 p.m. New York
City time on the third Business Day preceding the Redemption
Date.
If an Event of Default shall occur
and be continuing, the principal of this Security may be declared
due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain
exceptions as therein provided, the Trustee to enter into one or
more supplemental indentures for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not
less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under the Indenture,
considered as one class; provided, however, that if there shall be
Securities of more than one series Outstanding under the Indenture
and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of
A-3
any series shall
