PUBLIC SERVICE COMPANY OF COLORADO
BOND PURCHASE CONTRACT
Public Service Company of Colorado, a Colorado corporation (the "Company"),
confirms its agreement with each of the Purchasers (as hereinafter defined) with
respect to the sale by the Company and the purchase by the Purchasers, severally
and not jointly, of the Bonds (as hereinafter defined).
1. Purchasers and Representative. If there shall be two or more persons,
firms or corporations named as purchasers in Schedule I hereto, the term
"Purchasers" as used herein shall be deemed to mean the several persons, firms
or corporations so named (including the Representative hereinafter mentioned, if
so named, and any Purchasers substituted pursuant to paragraph 11 hereof), and
the term "Representative" as used herein shall be deemed to mean the
representative or representatives named in Schedule I hereto. If there shall be
only one person, firm or corporation named in Schedule I hereto, the term
"Purchasers" and the term "Representative" as used herein shall mean such
person, firm or corporation. The Representative represents and warrants that it
has the necessary power and authority to execute this Contract on behalf of the
Purchasers and to otherwise act for each of the Purchasers in respect of all
matters referred to in this Contract. All obligations of the Purchasers
hereunder are several and not joint.
2. Description of Bonds. The Company proposes to issue and sell the Bonds
as a single series under its Indenture, dated as of October 1, 1993 (the
"Original Indenture"), to U.S. Bank Trust National Association (formerly First
Trust of New York, National Association), as successor trustee to ▇▇▇▇▇▇
Guaranty Trust Company of New York (the "Trustee"), as heretofore amended and
supplemented and as it will be further supplemented by a supplemental indenture
creating the Bonds (said Original Indenture, as so amended and supplemented and
to be further supplemented, and said supplemental indenture being hereinafter
referred to as the "Indenture" and the "Supplemental Indenture", respectively).
The Bonds shall be issued in the aggregate principal amount or amounts, shall
bear interest at the rate or rates, shall be payable on the dates, and shall
mature on the date or dates set forth, and shall be subject to optional and
sinking fund redemption as described, in Schedule II hereto. The term "Bonds" as
used in this Contract shall mean the bonds described in this paragraph 2.
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3. Representations and Warranties of the Company. The Company represents
and warrants to the Purchasers that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, for the registration of securities having an aggregate
principal amount not exceeding $450,000,000, including the Bonds,
under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and has filed such amendments thereto as may have
been required to the date hereof. Such registration statement has been
declared effective by the Commission and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement, in the form in which it became
effective, as amended to the date hereof, including the information,
if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of
the 1933 Act Regulations (the "Rule 434 Information"), is hereinafter
referred to as the "Registration Statement"; the prospectus included
in the Registration Statement, as such prospectus may have been
amended to the date hereof, is hereinafter referred to as the "Basic
Prospectus"; and the Basic Prospectus, as supplemented by a prospectus
supplement relating to the Bonds (the "Prospectus Supplement"), is
hereinafter referred to as the "Prospectus"; provided, however, that
(i) the terms "Registration Statement", "Basic Prospectus" and
"Prospectus" shall be deemed to refer to and include, in each case,
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, (ii) any reference herein to any
amendment or supplement to the Prospectus shall be deemed to refer to
and include any documents filed after the date of the Prospectus
pursuant to Section 13 or 14 of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and so incorporated by reference, all of
such documents so incorporated by reference being hereinafter referred
to as the "Incorporated Documents", and (iii) any prospectus
supplement to the Basic Prospectus which relates to securities other
than the Bonds shall not be deemed to be a part of the Basic
Prospectus or the Prospectus. If the Company files a registration
statement to register a portion of the Bonds and relies on Rule 462(b)
of the 1933 Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then, after such filing, all references to "Registration
Statement" herein shall be deemed to be to the Registration
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Statement referred to above and the Rule 462 Registration Statement,
as each such registration statement may be amended to the date hereof.
If the Company elects to rely on Rule 434 of the 1933 Act Regulations,
all references to the "Prospectus" shall be deemed to include the form
of prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, taken together, provided to
the Purchasers by the Company in reliance on Rule 434.
(b) At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the
Company's most recent Annual Report on Form 10-K with the Commission
subsequent to the date the Registration Statement became effective
(the "Annual Report on Form 10-K")) became effective, the Registration
Statement and any amendments and supplements thereto complied, and,
upon the filing of the Prospectus Supplement with the Commission, the
Prospectus will comply, with the provisions of the 1933 Act and the
applicable 1933 Act Regulations, or pursuant to the 1933 Act
Regulations are or will be deemed to have complied or to comply
therewith; at the time the Registration Statement became effective,
the Registration Statement 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 not misleading;
and, at the time the Registration Statement became effective and at
the date hereof, the Basic Prospectus did not and does not include an
untrue statement of a material fact or omit 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,
however, that none of the foregoing representations and warranties in
this subparagraph (b) shall apply to that part of the Registration
Statement which shall constitute the Statement of Eligibility under
the 1939 Act of the trustee under the Indenture (the "Statement of
Eligibility"). If Rule 434 under the 1933 Act Regulations is used, the
Company will comply with the requirements of Rule 434.
(c) The Incorporated Documents, at the time they were filed with
the Commission, complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, do 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
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which they were made, not misleading; and any additional Incorporated
Documents will, when they are filed with the Commission, comply in all
material respects with the requirements of the 1934 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 are made, not misleading.
(d) The financial statements included in the Registration
Statement present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations 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 applied on a consistent basis during the periods involved
and the supporting financial schedules included in the Registration
Statement present fairly the information required to be stated
therein. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accountants who certified certain of
such financial statements and financial schedules, are independent
certified public accountants as required by the 1933 Act and the 1933
Act Regulations.
(e) Except as may otherwise be reflected in or contemplated by
the Registration Statement, since the respective dates as of which
information is given therein (i) there has been no material adverse
change nor any development or event involving a prospective material
adverse change in the business, property or condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and (ii) neither the Company nor any of its subsidiaries has entered
into any transactions which are material to the Company and its
subsidiaries considered as one enterprise, other than in the ordinary
course of business; and, except as so reflected or contemplated,
neither the Company nor any of its subsidiaries has any contingent
obligations which are material to the Company and its subsidiaries
considered as one enterprise.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Colorado with corporate power and authority to own its properties
and conduct its business as described in the Registration Statement.
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(g) The issuance and sale by the Company of the Bonds pursuant to
this Contract have been duly authorized by all necessary corporate
action; and, when issued, authenticated and delivered by the Company
pursuant to this Contract against payment of the consideration
therefor specified herein, the Bonds will be valid and binding
obligations of the Company, enforceable in accordance with their
terms, except as enforcement thereof may be limited by laws or
principles of equity affecting generally the enforcement of
mortgagees' and other creditors' rights, including without limitation
bankruptcy and insolvency laws and state laws which affect the
enforcement of certain remedial provisions of the Indenture, and will
be entitled to the benefits of the Indenture.
(h) The issuance and delivery by the Company of the Class A Bonds
(as defined in the Indenture) to be made the basis of the
authentication and delivery of the Bonds (the "Class A Bonds") have
been duly authorized by all necessary corporate action; and when (i)
the Class A Bonds have been issued, authenticated and delivered to the
Trustee pursuant to the Indenture and (ii) the Bonds have been issued,
authenticated and delivered to the Purchasers pursuant to this
Contract against payment of the consideration therefor specified
herein, the Class A Bonds will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by laws or principles of equity
affecting generally the enforcement of mortgagees' and other
creditors' rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement of certain
remedial provisions of the PSCO 1939 Mortgage (as defined in the
Indenture), and will be entitled to the benefits of the PSCO 1939
Mortgage.
(i) The execution and delivery of this Contract, the incurrence
of the obligations herein set forth and the consummation of the
transactions herein contemplated will not conflict with or constitute
a breach of, or default under, the Restated Articles of Incorporation,
as they may have been amended, or By-Laws of the Company or any
contract, lease, note, mortgage or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or any law, administrative regulation or
administrative or court order.
(j) The Company has filed with the Public Utilities Commission of
the State of Colorado (the "Colorado Commission") an application with
respect to the issuance and sale of the Company's debt securities,
including the Bonds,
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and the Colorado Commission has issued its order authorizing and
approving such issuance and sale. No further consent or authorization
of or approval by the Colorado Commission or any other governmental or
regulatory authority or body is necessary in connection with the
issuance and sale by the Company of the Bonds pursuant to this
Contract, except that there must be compliance with the securities
laws in the jurisdictions in which the Bonds are to be offered and
sold.
(k) The franchises held by the Company and its subsidiaries,
together with the applicable Certificates of Convenience and Necessity
issued by The Public Utilities Commission of the State of Colorado,
give the Company 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.
Any certificate signed by any officer of the Company and delivered to the
Representative or to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, who are acting as counsel for the
Purchasers, shall be deemed a representation and warranty by the Company to each
Purchaser as to the matters covered thereby.
4. Purchase and Sale. On the basis of the representations and warranties,
and subject to the terms and conditions, in this Contract set forth, the Company
agrees to sell to each of the several Purchasers, severally and not jointly, and
each Purchaser agrees, severally and not jointly, to purchase from the Company,
the principal amount of the Bonds set forth in Schedule I hereto opposite the
name of such Purchaser at the price specified in Schedule II hereto.
5. Public Offering. Forthwith upon the execution of this Contract, the
Representative shall furnish the Company in writing any information regarding
the public offering, if any, of the Bonds, in addition to the information set
forth on Schedules I and II hereto, which is required to prepare the Prospectus
Supplement.
6. Time and Place of Closing. Delivery of the Bonds and payment therefor by
certified or official bank check or checks payable to the order of the Company,
or by wire transfer to a bank account specified by the Company, in the funds
specified in Schedule II hereto, shall be made at the office of LeBoeuf, Lamb,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00
A.M., New York time, on the date specified in Schedule II hereto, or at such
other place, time or date as may be agreed upon by the Company and the
Representative.
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The time and date of such payment and delivery are herein called the "Closing
Date".
The Bonds shall be delivered to or upon the order of the Representative for
the respective accounts of the Purchasers in registered form in such authorized
denominations and registered in such names as the Representative may reasonably
request in writing at least one business day prior to the Closing Date or, to
the extent not so requested, in the names of the respective Purchasers in such
denominations as the Company shall determine. The Company agrees to make the
Bonds available to the Representative for checking not later than 2:30 P.M., New
York time, on the last business day preceding the Closing Date at the office of
U.S. Bank Trust National Association, New York, New York, or at such other place
as may be agreed upon by the Company and the Representative.
7. Covenants of the Company. The Company covenants with each Purchaser
that:
(a) the Company will promptly deliver to the Representative two
signed copies of the registration statement relating to the Bonds as
originally filed and of all amendments thereto heretofore or hereafter
made (in each case including all Incorporated Documents and exhibits
thereto, other than exhibits incorporated by reference), and including
a signed copy of each consent and certificate included therein or
filed as an exhibit thereto, and will deliver to the Representative
conformed copies of each of the foregoing (excluding such exhibits,
consents and certificates) for distribution to the Purchasers. The
Company will also deliver to the Purchasers, through the
Representative, as soon as practicable after the date hereof and
thereafter from time to time, as many copies of the Prospectus and any
amendments or supplements thereto as the Representative may reasonably
request for the purposes contemplated by the 1933 Act.
(b) The Company will not file any amendment to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or make any amendment or supplement to the Prospectus
(including any Term Sheet) of which the Representative shall not
previously have been advised or which shall have been reasonably
disapproved in writing by the Representative or ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇.
(c) The Company will pay or cause to be paid (i) all expenses in
connection with (A) the preparation and filing by it of the
Registration Statement, (B) the preparation,
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printing, issuance and delivery of the Bonds as provided in paragraph
6 hereof, (C) the preparation, execution, filing and recording of the
Indenture and the Supplemental Indenture and the preparation of this
Contract, (D) the preparation, issuance and delivery of the Class A
Bonds, (E) the preparation, execution, filing and recording of the
indenture supplemental to the PSCO 1939 Mortgage creating the Class A
Bonds (the "1939 Mortgage Supplemental Indenture"), and (F) the
printing and delivery to the Purchasers, through the Representative,
in reasonable quantities, of copies of the Registration Statement and
the Prospectus, and any amendments or supplements thereto (except as
otherwise provided in subparagraph (d) of this paragraph 7), this
Contract, the Indenture and the Supplemental Indenture, (ii) the fees
and disbursements of the Company's counsel and accountants related to
the preparation of the Registration Statement and Prospectus, the
issuance and sale of the Bonds and issuance and delivery of the Class
A Bonds, (iii) the expenses incurred in connection with the
qualification of the Bonds under securities laws in accordance with
subparagraph (g) of this paragraph 7, including filing fees and
reasonable fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in
connection therewith and in connection with the preparation of the
Blue Sky Survey and the Legal Investment Survey, if any, and (iv) all
taxes, if any (except transfer taxes), on the issuance of the Bonds.
If this Contract is terminated in accordance with subparagraph (a)(i),
(a)(ii) or (b) of paragraph 12 hereof, the Company will reimburse the
Purchasers for all their out-of-pocket expenses, including the fee and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇. The Company will not in any
event be liable to any of the Purchasers for damages on account of the
loss of anticipated profits.
(d) If, at any time when a prospectus relating to the Bonds is
required to be delivered under the 1933 Act, the Prospectus, as it may
then have been amended or supplemented, would, in the opinion of the
Company or the Representative, include an untrue statement of a
material fact or omit 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, or if, at such time, it shall be
necessary to amend or supplement the Prospectus, as it may then have
been amended or supplemented, in order to comply with Section 10 of
the 1933 Act or the 1933 Act Regulations, the Company will, subject to
Section 7(b) hereof, forthwith prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or effect such compliance and will furnish a reasonable number of
copies thereof to
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the Representative. During the first nine months after the date
hereof, the cost of so preparing, filing and furnishing such amendment
or supplement will be borne by the Company and, thereafter, by the
Purchasers who request the same; provided, however, that should such
amendment or supplement relate solely to the activities of any
Purchaser or Purchasers, then such cost shall in any event be borne by
such Purchasers. For purposes of this subparagraph (d) the Company
shall be entitled to assume that a prospectus relating to the Bonds
shall no longer be required to be delivered under the 1933 Act from
and after the forty-fifth day after the date of this Contract, unless
it shall have received from the Representative notice to the contrary.
Whenever a prospectus shall be so required to be delivered, the
Purchasers will deliver the Prospectus, as it may have been amended or
supplemented at the time of such delivery.
(e) The Company will make generally available to its security
holders, as soon as practicable, an earnings statement (which need not
be audited) of the Company and its consolidated subsidiaries covering
a period of 12 months beginning not later than the first day of the
Company's fiscal quarter next following the date of this Contract and
complying with Rule 158 of the 1933 Act Regulations.
(f) The Company will comply with the requirements of Rule 430A of
the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations,
if and as applicable, and during the period when a prospectus relating
to the Bonds is required to be delivered under the 1933 Act or the
1934 Act, the Company will promptly advise the Representative by
telephone, promptly confirmed in writing, (i) of the effectiveness of
any post-effective amendment to the Registration Statement or the
filing of any supplement or amendment to the Prospectus, (ii) of the
receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information and (iv) of the issuance of any stop order under the 1933
Act with respect to the Registration Statement or of the institution
of any proceedings therefor of which the Company shall have received
notice or become aware, and will use its best efforts to prevent the
issuance of any such stop order and, if issued, to secure the prompt
lifting or removal thereof. For purposes of this subparagraph (f), the
Company shall be entitled to assume that a prospectus relating to the
Bonds shall no longer be required to be delivered under the 1933 Act
from and after the forty-fifth day after the date of this Contract
unless notified to the contrary by a Purchaser.
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(g) During the period of three months from the date of this
Contract, the Company will furnish such proper information as may
lawfully be required and otherwise cooperate in qualifying the Bonds
for offer and sale under the securities laws of such jurisdictions as
the Representative may reasonably designate; provided, however, that
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction, or to comply with any other requirement deemed by the
Company to be unduly burdensome.
(h) The Company, during the period when a prospectus relating to
the Bonds is required to be delivered under the 1933 Act, will (i)
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and (ii)
promptly notify the Representative by telephone and confirm in writing
if the rating assigned by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard
& Poor's Ratings Group to any debt securities of the Company shall
have been lowered or if ▇▇▇▇▇'▇ Investors Service, Inc. or Standard &
Poor's Ratings Group shall have informed the Company or publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Bonds or any other debt
securities of the Company.
(i) Promptly after the execution and delivery of this Contract,
the Company will transmit copies of the Prospectus to the Commission
for filing pursuant to Rule 424 of the 1933 Act Regulations. If the
Company elects to rely on Rule 434 of the 1933 Act, the Company will
prepare a Term Sheet that complies with the requirements of Rule 434
of the 1933 Act Regulations and will transmit copies of the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance
with Rule 424 under the 1933 Act Regulations.
(j) Between the date hereof and the date which is 10 days after
the Closing Date, the Company will not, without the prior written
consent of the Representative, offer or sell or enter into any
agreement to sell, any of its other debt securities which are
substantially similar to the Bonds; it being understood that the
Company may offer and sell or enter into an agreement to offer and
sell subordinated debt securities in connection with an offering of
trust offered preferred securities.
8. Conditions of Purchasers' Obligations. The several obligations of the
Purchasers to purchase and pay for the Bonds shall be subject to the accuracy
when made of the representations and warranties on the part of the Company
contained herein or in
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certificates of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations to be performed hereunder at or
prior to the Closing Date and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall then be pending before, or
threatened by, the Commission. A prospectus containing information
relating to the description of the Bonds, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including
the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) At the Closing Date, the order of the Colorado Commission
authorizing and approving the issuance and sale of the Bonds and the
issuance and delivery of the Class A Bonds 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) At the Closing Date, the Representative shall have received a
certificate, dated the Closing Date, of the Company signed by its
President or one of its Vice Presidents, substantially in the form
thereof attached as Exhibit A hereto.
(d) At the Closing Date, the Representative shall have received
opinions, dated the Closing Date, of LeBoeuf, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., counsel for the Company, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Purchasers, substantially in the forms thereof attached hereto
as Exhibits B and C, respectively, with reproduced or conformed copies
thereof for each of the Purchasers.
(e) At the Closing Date, the Representative shall have received a
letter, dated the Closing Date, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
substantially to the effect set forth in Exhibit D hereto, with
reproduced or conformed copies thereof for each of the Purchasers.
(f) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Purchasers, shall have been furnished with
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such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Bonds and the
issuance and delivery of the Class A Bonds as herein contemplated and
related proceedings, or in order to evidence the accuracy or
completeness of any of the representations or warranties, or the
fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Bonds and the issuance and delivery of the Class A Bonds
as herein contemplated shall be satisfactory in form and substance to
the Representative and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇.
9. Conditions of Company's Obligation. The obligation of the Company to
deliver the Bonds shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall then be pending before, or
threatened by, the Commission.
(b) At the Closing Date, the order of the Colorado Commission
authorizing and approving the issuance and sale of the Bonds and the
issuance and delivery of the Class A Bonds 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.
10. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Purchaser and each person who controls any Purchaser within the
meaning of Section 15 of the 1933 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any
of them may become subject and to reimburse each such Purchaser and
controlling person for any legal or other expenses (including, subject
to subparagraph (c) of this paragraph 10, reasonable counsel fees)
reasonably incurred by them, as incurred, in connection with any such
losses, claims, damages or liabilities or in connection with
investigating or preparing for or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or in connection with effecting a settlement
of any such litigation, investigation or proceeding (if such
settlement is effected with the written consent of the Company),
insofar as such losses, claims, damages, liabilities, expenses,
litigation, investigations or proceedings arise out of, or are based
upon, an untrue statement or alleged untrue statement of a
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material fact contained in the Registration Statement, or in 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 an untrue statement or alleged
untrue statement of a material fact included in the Basic Prospectus
or the Prospectus, as it may have been or be amended or supplemented,
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; provided,
however, that the indemnity agreement contained in this subparagraph
(a) shall not apply to any such losses, claims, damages, liabilities,
expenses, litigation, investigations or proceedings arising out of, or
based upon, any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, if such statement or omission
was made in reliance upon and in conformity with information furnished
in writing to the Company on behalf of any Purchaser, through the
Representative, expressly for use in the Prospectus, or any amendment
or supplement thereto, or arising out of, or based upon, any such
untrue statement or alleged untrue statement in, or any such omission
or alleged omission from, the Statement of Eligibility; and provided,
further, that the indemnity agreement contained in this subparagraph
(a) shall not inure to the benefit of any Purchaser or of any person
controlling such Purchaser on account of any such loss, claim, damage,
liability, expense, litigation, investigation or proceeding arising
from the sale of Bonds to any person if (i) such Purchaser shall have
failed to send or give to such person (A) with or prior to the written
confirmation of such sale, a copy of the Prospectus together with any
amendments or supplements thereto which shall theretofore have been
furnished to such Purchaser, or (B) with or prior to the delivery of
such Bonds to such person, a copy of any amendment or supplement to
the Prospectus which shall have been furnished to such Purchaser
subsequent to such written confirmation and prior to the delivery of
such Bonds to such person, and (ii) in either such case, any untrue or
misleading statement or omission made or alleged to have been made
shall have been eliminated or remedied in the Prospectus or the
amendment or supplement thereto which such Purchaser so failed to send
or give to such person and such Purchaser would not have been liable
had a copy of such Prospectus, amendment or supplement, as the case
may be, been so sent or given to such person. Each Purchaser agrees
promptly to notify the Company and each other Purchaser of the
commencement of any litigation, investigation or proceeding against it
or any such controlling person in connection with the issuance and
sale of the Bonds.
-13-
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and officers, and each person who controls the
Company within the meaning of Section 15 of the 1933 Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject and to reimburse each of
them for any legal or other expenses (including, subject to
subparagraph (c) of this paragraph 10, reasonable counsel fees)
incurred by them, as incurred, in connection with any such losses,
claims, damages or liabilities or in connection with investigating or
preparing for or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or in connection with effecting a settlement
of any such litigation, investigation or proceeding (if such
settlement is effected with the written consent of each Purchaser
affected thereby), insofar as such losses, claims, damages,
liabilities, expenses, litigations, investigations or proceedings
arise out of, or are based upon, an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
or in 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 an untrue
statement or alleged untrue statement of a material fact included in
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, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company on behalf of such
Purchaser, through the Representative, expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus,
or any amendment or supplement thereto. The Company agrees promptly to
notify the Representative of the commencement of any litigation,
investigation or proceeding against it, any such director or officer,
or any such controlling person, in connection with the issuance and
sale of the Bonds.
(c) The Company and the several Purchasers each agree that, upon
receipt of notice of the commencement of any action against it or any
director, officer or person controlling the Company or any person
controlling such Purchaser as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement contained herein,
it will promptly give notice of the commencement thereof to the party
or parties against whom indemnity shall be sought hereunder, but the
omission so to notify such
-14-
indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they
may have to the indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action shall be
so given, such indemnifying party shall be entitled to participate at
its own expense in the defense, or, if it so elects, to assume (in
conjunction with any other indemnifying parties) the defense, of such
action, in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or defendants in
such action. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to one 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. The indemnity agreements contained in
this paragraph 10 shall be in addition to any liability which the
Company or the Purchasers may otherwise have.
11. Contribution. If the indemnification provided for in paragraph 10
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities
referred to therein; then each indemnifying party shall contribute to the
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportions as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchasers on the other hand from the
offering of the Bonds pursuant to this Contract 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 the Company on the one hand and of the
Purchasers on the other hand in connection with the statements or omissions,
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Purchasers on the other hand in connection with the offering of the Bonds
pursuant to this Contract shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Bonds pursuant to
this Contract (before deducting expenses) received by the Company and the total
underwriting discount received by Purchasers, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public offering price of
the Bonds as set forth on such cover.
-15-
The relative fault of the Company on the one hand and the Purchasers on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
Purchasers or by the Company and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this paragraph 11 were determined by pro
rata allocation (even if the Purchasers 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 11. The aggregate
amount of losses, claims, damages and liabilities incurred by an indemnified
party and referred to above in this paragraph 11 shall be deemed to include any
legal or other expenses (including, subject to subparagraph (c) of paragraph 10,
reasonable counsel fees) 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 paragraph 11, no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Bonds underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Purchaser 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph 11, each person, if any, who controls a
Purchaser 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 Purchaser, and each
director of the Company and each officer of the Company, and each person, if
any, who controls the Company within the meaning of paragraph 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The Purchaser's respective obligations to contribute pursuant to this
paragraph 11 are several in proportion to the number of Bonds set forth
-16-
opposite their respective names in Schedule 1 hereto and not joint.
12. Substitution of Purchasers. If any Purchaser or Purchasers shall fail
or refuse at the Closing Date (otherwise than for some reason sufficient to
justify, in accordance with the provisions hereof, the cancellation or
termination of its or their obligations hereunder) to purchase and pay for the
Bonds which it or they have agreed to purchase as provided in paragraph 4 hereof
(the "Defaulted Bonds"), and:
(a) if the aggregate principal amount of the Defaulted Bonds does
not exceed 10% of the aggregate principal amount of the Bonds, the
remaining Purchasers (the "Non-Defaulting Purchasers") shall have the
right, within a period of 24 hours thereafter, to make arrangements
for one or more of the Non-Defaulting Purchasers, or any other
purchasers acceptable to the Company, to purchase all, but not less
than all, of the Defaulted Bonds 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 Purchasers shall not have
completed such arrangements for the purchase of all the Defaulted
Bonds, then the Non-Defaulting Purchasers shall be obligated to
purchase and pay for the Defaulted Bonds 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 Purchasers); or
(b) if the aggregate principal amount of the Defaulted Bonds
exceeds 10% of the aggregate principal amount of the Bonds, the
Non-Defaulting Purchasers shall have the right, within a period of 24
hours thereafter, to make arrangements for one or more of the
Non-Defaulting Purchasers, or any other purchasers acceptable to the
Company, to purchase the Defaulted Bonds 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 Purchasers shall not
have completed such arrangements for the purchase of all the Defaulted
Bonds, then the Company 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 Purchasers, to purchase and pay for, upon the terms
herein set forth, Defaulted Bonds for the purchase of which no
arrangements shall have been made by the Non-Defaulting Purchasers. In
the event that neither the Non-Defaulting Purchasers nor the Company
has arranged for the purchase of
-17-
the Defaulted Bonds as above provided, then this Contract shall
terminate.
In the event that the sale and delivery of all or any principal amount of
the Bonds shall be effected as provided in clause (a) or (b) above, (a) either
the Company or the Representative shall have the right to postpone the Closing
Date until the fifth business day after the Closing Date originally specified in
paragraph 6 hereof or such other time as the Company and the Representative (or
the representative of the Non-Defaulting Purchasers and the substituted
purchasers, if any, if the Representative shall be in default) shall agree, (b)
the Company 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 Bonds to be purchased by the Non-Defaulting
Purchasers or substituted purchasers shall be taken as the basis of their
respective purchase commitments hereunder.
In the event that this Contract shall terminate as provided in clause (b)
above, neither the Company nor the Non-Defaulting Purchasers shall be under any
obligation under this Contract except as otherwise provided in subparagraph (c)
of paragraph 7 hereof
No action taken by the Company or the Non-Defaulting Purchasers under this
paragraph 12 shall relieve any defaulting Purchaser of liability in respect of
its default hereunder.
13. Termination.
(a) This Contract may be terminated at any time at or prior to the Closing
Date by the Representative if:
(i) (A) the Company shall have failed or refused to perform any
covenant or agreement on its part to be performed hereunder at or
prior to the Closing Date, or (B) the conditions specified in
paragraph 8 hereof shall not have been fulfilled;
(ii) subsequent to the respective dates as of which information is
given in the Prospectus in the form first filed pursuant to Rule
424(b), other than as set forth or contemplated therein at such
time, or subsequent to the date hereof there shall have been any
material adverse change in the business, property or condition,
financial or otherwise, of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the
ordinary course of business, the effect of which is, in the
reasonable judgment of the
-18-
Representative, so material and adverse as to make it
impracticable or inadvisable for the Purchasers to market the
Bonds, or to enforce contracts for the sale of the Bonds, upon
the terms specified in the Prospectus;
(iii)(A) there shall have occurred any outbreak of hostilities or
material escalation thereof or other national or international
calamity or crisis, (B) trading generally on the New York Stock
Exchange shall have been suspended (other than a temporary
suspension to provide for an orderly market), or minimum or
maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required on said
exchange or by order of the Commission or any other governmental
authority having jurisdiction, or (C) a banking moratorium shall
have been declared by either Federal or New York State
authorities, in any such case with the result that, in the
reasonable judgment of the Representative, it shall be
impracticable for the Purchasers to market the Bonds, or to
enforce contracts for the sale of the Bonds, upon the terms
specified in the Prospectus; or
(iv) the rating assigned by ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Ratings Group to any debt securities of the
Company as of the date of this Contract shall have been lowered
since such date or ▇▇▇▇▇'▇ Investors Service, Inc. or Standard &
Poor's Ratings Group shall have informed the Company or publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Bonds or any other debt
securities of the Company.
(b) This Contract may be terminated at any time at or prior to the Closing
Date by the Company if the conditions specified in paragraph 9 hereof shall not
have been fulfilled.
(c) This Contract may be terminated by the Company as provided in paragraph
12 hereof.
(d) Termination of this Contract under this paragraph 13 shall be effected
by giving notice thereof to the Company or the Representative, as the case may
be.
(e) Any termination of this Contract pursuant to this paragraph 13 shall be
without liability of any party to any other party except as otherwise provided
in subparagraph (c) of paragraph 7 hereof and provided further that paragraphs
10 and 11
-19-
shall survive such termination and remain in full force and effect.
14. Survival. The respective representations, warranties and agreements of
the Company and the Purchasers contained in this Contract or contained in
certificates of officers of the Company submitted in conjunction herewith will
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Company, any of its directors and officers or any
controlling person thereof, or any Purchaser or any controlling person thereof,
and shall survive the delivery of the Bonds.
15. Miscellaneous. This Contract shall inure to the benefit of the Company,
the Purchasers and, with respect to the provisions of paragraphs 10 and 11
hereof, each director, officer and controlling person referred to in said
paragraphs 10 and 11, and their respective successors. Nothing in this Contract
is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Contract or any provision herein contained. The term "successors" as used
in this Contract shall not include any purchaser of any of the Bonds merely
because of such purchase. The validity and interpretation of this Contract shall
be governed by the laws of the State of New York. This Contract may be executed
in one or more counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
16. Notices. Except as herein otherwise specifically provided, all notices
and other communications hereunder shall be in writing and if sent to the
Purchasers shall be mailed, delivered or telecopied and confirmed in writing to
the Representative at the address and telecopy number set forth in Schedule I
hereto or, if sent to the Company, shall be mailed, delivered or telecopied
(303-294-2583) and confirmed in writing to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Senior Vice President and Chief Financial Officer, with a copy
to (212-424-8500) and confirmed in writing to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
-20-
The Company and the Representative, on behalf of the Purchasers, have
caused this Bond Purchase Contract to be executed and delivered this fifteenth
day of April, 1998.
PUBLIC SERVICE COMPANY OF COLORADO
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC
As Representative of the Purchasers
listed in Schedule I hereto
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-21-
SCHEDULE I
PURCHASERS
Principal Amount of
First Collateral Trust
Bonds, Series No. 6
Purchaser 6% Bonds Due 2003
---------
Salomon Brothers Inc $100,000,000
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 50,000,000
Chase Securities Inc. 50,000,000
▇.▇. ▇▇▇▇▇▇ & Co. 50,000,000
------------
Total................................. $250,000,000
============
REPRESENTATIVE
Name: Salomon Brothers Inc
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
-22-
SCHEDULE II
INFORMATION REGARDING THE BONDS
AND THE SALE THEREOF
1. Registration Statement No.:......................................333-47485
2. Aggregate Principal ▇▇▇▇▇▇(s), Maturity Date(s) and Interest Rate(s):
Principal Maturity Interest
Amount Date Rate
$250,000,000 April 15, 2003 6%
3. Interest Payment Dates: April 15 and October 15
4. Record Dates: April 1 and October 1
5. Interest to Accrue from: April 20, 1998
6. Price to Be Paid to Company: 99.252% of the principal amount, plus accrued
interest, if any, from April 20, 1998 to the date of payment by, and
delivery to, the Purchasers.
7. Method of and Specified Funds for Payment of Purchase Price: Wire transfer
of immediately available funds.
8. Initial Public Offering Price (if any): 99.852% of the principal amount,
plus accrued interest, if any, from April 20, 1998 to the date of payment
by, and delivery to, the ultimate purchaser.
9. Closing Date: April 20, 1998
10. Optional Redemption: The Bonds will not be redeemable prior to maturity.
11. Sinking Fund: None.
12. Basic Prospectus: The Basic Prospectus referred to in the Bond Purchase
Contract shall mean and refer to the Basic Prospectus dated April 3, 1998.
-23-
Exhibit A
to
Bond Purchase
Contract
PUBLIC SERVICE COMPANY OF COLORADO
CERTIFICATE
Pursuant to paragraph 8(c) of the Bond Purchase Contract, dated _________
(the "Contract"), between Public Service Company of Colorado, a Colorado
corporation (the "Company"), and the several Purchasers named in Schedule I
thereto, the Company DOES HEREBY CERTIFY that:
(a) No stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened by the Commission.
(b) The order of the Colorado Commission authorizing and approving the
issuance and sale of the Bonds and the issuance and delivery of the Class A
Bonds is final and in full force and effect and the time for appeal
therefrom or review thereof or intervention with respect thereto has
expired.
(c) At the date hereof, the Prospectus, as it may have been amended or
supplemented, complies with the provisions of the 1933 Act and the 1933 Act
Regulations, or pursuant to the 1933 Act Regulations is deemed to comply
therewith; and, at the date of the Contract, the Prospectus did not, and,
at the date hereof, the Prospectus, as it may have been amended or
supplemented, does not, include an untrue statement of a material fact or
omit 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, however, that none of the foregoing certifications in
this paragraph (c) shall apply to statements in or omissions from the
Prospectus, as it may have been amended or supplemented, made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Purchaser, through the Representative, expressly for
use in the Prospectus or any amendment or supplement thereto. The Company
has delivered to the Representative copies of the Prospectus and all
amendments and supplements thereto.
-1-
(d) The financial statements incorporated by reference in the
Prospectus, as it may have been amended or supplemented, present fairly the
financial position of the Company and its consolidated subsidiaries as at
the dates indicated and the results of their operations for the periods
specified; and, except as otherwise stated in the Prospectus, as it may
have been amended or supplemented, such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, the accountants who certified certain of such financial statements,
are independent certified public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(e) Except as may otherwise be reflected in or contemplated by the
Prospectus, as it may have been amended or supplemented, since the
respective dates as of which information is given therein, (i) there has
been no material adverse change or any development or event involving a
prospective material adverse change in the business, property or condition,
financial or otherwise, of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business
and (ii) neither the Company nor any of its subsidiaries has entered into
any transactions which are material to the Company and its subsidiaries
considered as one enterprise, other than in the ordinary course of
business; and, except as so reflected or contemplated, neither the Company
nor any of its subsidiaries has any contingent obligations which are
material to the Company and its subsidiaries considered as one enterprise.
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Colorado with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, as it may have been amended or
supplemented.
(g) The representations and warranties of the Company contained in
subparagraphs (g), (h), (i), (j) and (k) of paragraph 3 of the Contract are
true and correct as of the date hereof.
All terms contained in this Certificate which are defined in the Contract
are used herein with the same meaning as in the Contract.
-2-
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed
on its behalf this ____ day of _______ 199__.
PUBLIC SERVICE COMPANY OF COLORADO
By________________________________
Title_____________________________
-3-
Exhibit B
to
Bond Purchase
Contract
[LETTERHEAD OF LeBoeuf, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.]
[Purchasers]
Ladies and Gentlemen:
We have acted as counsel to Public Service Company of Colorado (the
"Company") in connection with the sale by the Company of $250,000,000 aggregate
principal amount of First Collateral Trust Bonds, Series No. 6 (the "Bonds"),
which are registered pursuant to the registration statement (File No. 333-
47485) of the Company for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of up to $450,000,000 aggregate principal amount of
securities, including its first collateral trust bonds. This opinion is being
delivered to you pursuant to Section 8(d) of the Bond Purchase Contract, dated
__________________ (the "Purchase Contract"), between the Company and the
several purchasers named therein (the "Purchasers"). Unless otherwise stated,
defined terms used herein shall have the respective meanings given them in the
Purchase Contract.
We are not general counsel to the Company and our representation of the
Company consists of advising it with respect to corporate and regulatory matters
as to which we have been specifically consulted. We are familiar with the legal
matters pertaining to, and the corporate proceedings of the Company taken with
respect to, the authorization, issuance and sale by the Company of the Bonds and
the authorization, issuance and delivery of the Class A Bonds. We have examined,
among other things, the Registration Statement and the Prospectus, and any
amendment or supplement thereto, the corporate records of the Company, the
Indenture, the Supplemental Indenture creating the Bonds, the PSCO 1939 Mortgage
and the supplemental indenture thereto (the "1939 Supplemental Mortgage") under
which the Class A Bonds are being issued, the proceedings before The Public
Utilities Commission of the State of Colorado with respect to the issuance and
sale of the Bonds and the issuance and delivery of the Class A Bonds and such
other proceedings, papers and documents as we have deemed relevant for the
purpose of rendering the opinions enumerated below. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to the original documents of all
documents submitted to us as copies and the authenticity of all such latter
documents. We have relied as
-1-
to various questions of fact (but not as to legal conclusions) upon discussions
with officers and representatives of the Company and the representations and
warranties of the Company contained in the Purchase Contract and upon the
certificates of public officials and of officers of the Company being delivered
to you thereunder. With respect to the opinions expressed in paragraphs (ix),
(x) and (xi) below, we have relied on information obtained from public records
and from the Company.
On the basis of the foregoing, and subject to the limitations and
qualifications set forth herein, it is our opinion that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Colorado
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus, as amended or
supplemented to the date hereof. To the best of our knowledge, the
Company 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 the Company and its subsidiaries
considered as one enterprise.
(ii) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is in due and proper form and (assuming
the Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding mortgage of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by laws and principles of equity
affecting generally the enforcement of mortgagees' and other
creditors' rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture; provided, however, that such
state laws will not, in our opinion, render the remedies afforded by
the Indenture inadequate for the practical realization of the benefit
of the security provided thereby.
(iii)The Indenture is qualified under the Trust Indenture Act of 1939, as
amended.
-2-
(iv) The Bonds are in due and proper form and the issuance and sale of the
Bonds have been duly authorized by all necessary corporate action, and
when duly executed, authenticated and delivered to the Purchasers
pursuant to the Purchase Contract against payment of the consideration
set forth therein, the Bonds will be legal, valid and binding
obligations of the Company enforceable (subject to the exceptions and
limitations referred to in paragraph (ii) hereof) in accordance with
their terms and entitled to the benefits and security of the
Indenture; and, assuming that the Supplemental Indenture has been duly
transmitted to the appropriate public officials for recording and will
be duly recorded, the Bonds will be secured equally and ratably with
all other bonds outstanding under the Indenture.
(v) The PSCO 1939 Mortgage has been duly and validly authorized, executed
and delivered by the Company and is in due and proper form and
(assuming the PSCO 1939 Mortgage has been duly authorized, executed
and delivered by the trustee thereunder) constitutes a legal, valid
and binding mortgage of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of
mortgagees' and other creditors' rights, including without limitation
bankruptcy and insolvency laws and state laws which affect the
enforcement of certain remedial provisions of the PSCO 1939 Mortgage;
provided, however, that such state laws will not, in our opinion,
render the remedies afforded by the PSCO 1939 Mortgage inadequate for
the practical realization of the benefit of the security provided
thereby.
(vi) The Class A Bonds are in due and proper form and the issuance and
delivery of the Class A Bonds have been duly authorized by all
necessary corporate action; and when (a) the Class A Bonds have been
duly executed and authenticated pursuant to the PSCO 1939 Mortgage and
delivered to the Trustee pursuant to the Indenture and (b) the Bonds
have been duly executed, authenticated and delivered to the Purchasers
pursuant to the Purchase Contract against payment of the consideration
set forth therein, the Class A Bonds will be legal, valid and binding
obligations of the Company enforceable (subject to the exceptions and
limitations referred to in paragraph (iv) hereof) in accordance with
their terms and entitled to the benefits and
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security of the PSCO 1939 Mortgage; and, assuming that the 1939
Supplemental Mortgage has been duly transmitted to the appropriate
public officials for recording and will be duly recorded, the Class A
Bonds will be secured equally and ratably with all other bonds
outstanding under the PSCO 1939 Mortgage (except to the extent that
any sinking, amortization, improvement or other fund may afford
additional security for such bonds of any particular series).
(vii)The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(viii) The issuance and sale of the Bonds, and the issuance and delivery of
the Class A Bonds, have been duly authorized and approved by an order
of The Public Utilities Commission of the State of Colorado and such
order is final and in full force and effect on the date hereof, the
time for appeal therefrom or review thereof or intervention with
respect thereto having expired; no further approval, authorization,
consent or other order of any public board or body, including under
the Public Utility Holding Company Act of 1935, as amended, is legally
required (other than in connection or compliance with the provisions
of the securities laws of any jurisdiction) for the issuance and sale
by the Company of the Bonds pursuant to the Purchase Contract or for
the issuance and delivery of the Class A Bonds.
(ix) The Company has good title to the real properties specifically or
generally described or referred to in the Indenture and in the PSCO
1939 Mortgage as subject to the respective liens thereof (except such
real property as may have been sold, exchanged or otherwise disposed
of), subject only to (a) in the case of all such properties, the lien
of the PSCO 1939 Mortgage and "permitted encumbrances" (as defined in
the PSCO 1939 Mortgage) and (b) in the case of such properties which
are used or to be used in or in connection with the Electric Utility
Business (as defined in the Indenture) (whether or not such is the
sole use of such property) the lien of the Indenture and Permitted
Liens (as defined in the Indenture).
(x) The Indenture constitutes a mortgage lien on the properties
specifically or generally described or referred to therein as subject
to the lien thereof (except such properties as may have been sold,
exchanged or otherwise disposed of or released from the
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lien thereof in accordance with the terms thereof), subject to no
liens prior to the lien of the Indenture other than Permitted Liens
and the lien of the PSCO 1939 Mortgage; and the Indenture by its terms
effectively subjects to the lien thereof all property (except property
of the kinds specifically excepted from the lien of the Indenture by
the terms thereof) acquired by the Company after the date of execution
and delivery of the Indenture and used or to be used in or in
connection with the Electric Utility Business, subject to Permitted
Liens, the lien of the PSCO 1939 Mortgage, any lien thereon existing
at the time of such acquisition and to any liens for unpaid portions
of the purchase money placed thereon at the time of such acquisition,
and also subject to the provisions of Article Thirteen of the
Indenture and to certain possible claims of a trustee in bankruptcy
and possible claims and taxes of the federal government.
(xi) The PSCO 1939 Mortgage constitutes a first mortgage lien on the
properties specifically or generally described or referred to therein
as subject to the lien thereof), including the shares of stock pledged
thereunder (except such property as may have been sold, exchanged or
otherwise disposed of or released from the lien thereof in accordance
with the terms thereof), subject to no liens prior to the lien of the
PSCO 1939 Mortgage other than "permitted encumbrances"; and the PSCO
1939 Mortgage by its terms effectively subjects to the lien thereof
all property (except property of the kinds specifically excepted from
the lien of the PSCO 1939 Mortgage by the terms thereof) acquired by
the Company after the date of the execution and delivery of the PSCO
1939 Mortgage, subject to "permitted encumbrances", to any lien
thereon existing at the time of such acquisition and to any liens for
unpaid portions of the purchase money placed thereon at the time of
such acquisition, and also subject to the provisions of Article XI of
the PSCO 1939 Mortgage and to certain possible claims of a trustee in
bankruptcy and possible claims and taxes of the federal government.
(xii)The facsimile signature of an Executive Vice President, a Senior Vice
President or a Vice President of the Company in lieu of his or her
manual signature on the Bonds and the Class A Bonds and the facsimile
signature of the Secretary or an Assistant Secretary of the Company
attesting the corporate seal in lieu of his or
-5-
her manual signature on the Bonds and the Class A Bonds have been duly
and properly authorized by the Board of Directors of the Company, are
not inconsistent with the provisions of the Restated Articles of
Incorporation, as amended, or By-Laws of the Company and are valid and
effective under the laws of the State of Colorado; and the facsimile
signatures of such officers on the Bonds and the Class A Bonds have
the same legal effect as though they had manually signed and attested
the Bonds and the Class A Bonds as such respective officers.
(xiii) The statements in the Company'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, to the extent such statements relate to the Company, and
the statements in the Prospectus, and any amendment or supplement
thereto, under the caption "Security" under "Description of the Bonds"
and "Description of the 1939 Mortgage", 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.
(xiv)The Bonds, the Indenture, the Class A Bonds and the PSCO 1939
Mortgage conform as to legal matters to the description of the terms
thereof contained in the Registration Statement and the Prospectus, as
amended or supplemented to the date hereof.
(xv) The Registration Statement is effective under the 1933 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 1933
Act; and, at the time the Registration Statement became effective and
at the date of the Purchase Contract, the Registration Statement
complied, and, at the date hereof, the Prospectus, as it may have been
amended or supplemented, complies, as to form in all material respects
with the requirements of the 1933 Act and the applicable instructions,
rules and regulations thereunder, or pursuant to said instructions,
rules and regulations are deemed to have complied or to comply
therewith, although we do not express any opinion as to the financial
statements (including the notes thereto) or other financial or
statistical data included or incorporated by reference therein.
-6-
We do not know of any legal or governmental proceeding (pending or
threatened) required to be described in the Registration Statement or the
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.
In connection with this opinion, we have participated in discussions with
officers and representatives of the Company, in certain of which your
representatives and counsel also participated and at which the affairs of the
Company and the contents of the Registration Statement and the Prospectus were
discussed. There is no assurance that all possible material facts as to the
Company were disclosed to us or that our familiarity with the Company or the
operations in which it is engaged is such that we have necessarily recognized
the materiality of such facts as were disclosed, and we have to a large extent
relied upon statements of officers and representatives of the Company as to the
materiality of those facts disclosed to us. We 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 paragraph (xiii) above. Subject to the
foregoing, and to the other limitations and qualifications expressed in this
letter, we may state that nothing has come to our attention that would lead us
to believe that the Registration Statement, when it became effective, or at the
date of the Purchase Contract, 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 we do not express any belief as to the
financial statements (including the notes thereto) 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
Purchaser expressly for use therein or as to the Statement of Eligibility.
-7-
This opinion is limited to the laws of the State of New York and the State
of Colorado and the federal law of the United States of America. In addition, we
are not opining herein with respect to the securities or "blue sky" laws of any
state. Finally, this opinion speaks as of the date hereof and we undertake no
responsibility to advise you of any change in circumstances after the date
hereof.
U.S. Bank Trust National Association is hereby authorized to rely upon this
letter as if this letter were addressed to it. ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ is hereby
authorized to rely upon this letter as to matters governed by the law of the
State of Colorado as if this letter were addressed to it. This letter is not
being delivered for the benefit of, nor may it be relied upon by, the holders of
the Bonds or any other party to which it is not specifically addressed or to
which reliance has not expressly been permitted hereby.
Very truly yours,
-8-
Exhibit C
to
Bond Purchase
Contract
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
[Purchasers]
Ladies and Gentlemen:
We have acted as counsel for the Purchasers named in the Bond Purchase
Contract, dated [________________] (the "Purchase Contract"), among you and
Public Service Company of Colorado, a Colorado corporation (the "Company"), in
connection with the sale by the Company to you, severally, and the purchase by
you, severally, of $250,000,000 aggregate principal amount of First Collateral
Trust Bonds, Series No. 6 of the Company (the "Bonds"), being issued under its
Indenture, dated as of October 1, 1993, to U.S. Bank Trust National Association
(formerly First Trust of New York, National Association), as successor trustee
to ▇▇▇▇▇▇ Guaranty Trust Company of New York (formerly Guaranty Trust Company of
New York), and all indentures supplemental thereto, including the Supplemental
Indenture dated as of ___________________ creating the Bonds (the "Supplemental
Indenture") (said Indenture dated as of October 1, 1993 and all indentures
supplemental thereto being hereinafter collectively referred to as the
"Indenture").
In rendering our opinions set forth herein, we have examined originals,
photocopies or conformed copies certified to our satisfaction of all corporate
records. agreements, instruments and documents of the Company, certificates of
public officials and other certificates and opinions, and have made such other
investigations as we deem necessary, in connection with the opinions set forth
herein. In such examination, we have, without any independent investigation or
verification, assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as photocopies or conformed copies.
Based upon the foregoing, and subject to the assumptions set forth herein,
we advise you that in our opinion (based to the extent indicated below upon the
opinions of other counsel hereinafter mentioned):
-1-
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Colorado with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, as
amended or supplemented to the date hereof.
(2) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming the Indenture has been
duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding mortgage of the Company,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by laws and principles of equity affecting
generally the enforcement of mortgagees' and other creditors'
rights, including without limitation bankruptcy and insolvency
laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture.
(3) The Indenture is qualified under the Trust Indenture Act of 1939,
as amended.
(4) The Bonds are in due and proper form and the issuance and sale of
the Bonds by the Company have been duly authorized by all
necessary corporate action, and, when duly executed,
authenticated and delivered to the Purchasers pursuant to the
Purchase Contract against payment of the consideration set forth
therein, the Bonds will be legal, valid and binding obligations
of the Company enforceable (subject to the exceptions and
limitations referred to in paragraph (2) hereof) in accordance
with their terms and entitled to the benefits and security of the
Indenture; and the Bonds will be secured equally and ratably with
all other bonds outstanding under the Indenture.
(5) The PSCO 1939 Mortgage has been duly and validly authorized,
executed and delivered
-2-
by the Company and (assuming the PSCO 1939 Mortgage has been duly
authorized, executed and delivered by the trustee thereunder)
constitutes a legal, valid and binding mortgage of the Company,
enforceable in accordance with its terms, except as enforcement
thereof may be limited by laws and principles of equity affecting
generally the enforcement of mortgagees' and other creditors'
rights, including without limitation bankruptcy and insolvency
laws and state laws which affect the enforcement of certain
remedial provisions of the PSCO 1939 Mortgage.
(6) The Class A Bonds are in due and proper form and the issuance and
delivery of the Class A Bonds by the Company have been duly
authorized by all necessary corporate action; and when (a) the
Class A Bonds have been duly executed, authenticated and
delivered to the Trustee pursuant to the Indenture and (b) the
Bonds have been duly executed, authenticated and delivered to the
Purchasers pursuant to the Purchase Contract against payment of
the consideration set forth therein, the Class A Bonds will be
legal, valid and binding obligations of the Company enforceable
(subject to the exceptions and limitations referred to in
paragraph (5) hereof) in accordance with their terms and entitled
to the benefits and security of the PSCO 1939 Mortgage; and the
Class A Bonds will be secured equally and ratably with all other
bonds outstanding under the PSCO 1939 Mortgage (except to the
extent that any sinking, amortization, improvement or other fund
may afford additional security for such bonds of any particular
series).
(7) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(8) The issuance and sale of the Bonds, and the issuance and delivery
of the Class A Bonds, have been duly authorized and approved by
the Colorado Commission; no
-3-
further approval, authorization, consent or other order of any
public board or body, including under the Public Utility Holding
Company Act of 1935, as amended, is legally required (other than
in connection or compliance with the provisions of the securities
laws of any jurisdiction) for the issuance and sale by the
Company of the Bonds pursuant to the Purchase Contract or for the
issuance and delivery of the Class A Bonds.
(9) The Bonds, the Indenture, the Class A Bonds and the PSCO 1939
Mortgage conform as to legal matters to the description of the
terms thereof contained in the Registration Statement and the
Prospectus, as amended or supplemented to the date hereof.
(10) The Registration Statement is effective under the 1933 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 1933 Act; and, at the time the Registration Statement
became effective, the Registration Statement complied, and, at
the date hereof, the Prospectus, as amended or supplemented to
the date hereof, complies, as to form in all material respects
with the requirements of the 1933 Act and the applicable
instructions, rules and regulations thereunder, or pursuant to
said instructions, rules and regulations are deemed to have
complied or to comply therewith, although we do not express any
opinion as to the financial statements (including the notes
thereto) or other financial data or statistical included or
incorporated by reference therein.
We have participated in discussions with officers and other representatives
of the Company, counsel for the Company, representatives of the Company's
independent public accountants and your representatives and counsel at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although we are not passing upon and do not
-4-
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except to
the extent referred to in paragraph (9) above), on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers and
other representatives of the Company), no facts have come to our attention that
would lead us to believe that either the Registration Statement, when it became
effective [and, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission subsequent
to the effectiveness of the Registration Statement, then at the time each such
amendment became effective and at the time of the filing of the most recent such
Form 10-K], 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 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 (it being
understood that we do not make any comment with respect to the financial
statements (including the notes thereto) or other financial or statistical data
contained or incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto or with respect to
information contained therein furnished to the Company in writing by any
Purchaser expressly for use therein or as to the Form T-1).
This opinion is limited to the laws of the State of New York and the
federal law of the United States of America. Accordingly, in rendering the
opinions above, we have relied, with your consent, as to all matters governed by
the law of the State of Colorado, upon the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., of even date herewith addressed to you. We express no opinion
upon matters regarding titles to properties of the Company, the lien of the
Indenture or the filing or the recordation thereof, the lien of the PSCO 1939
Mortgage or the filing or the recordation thereof, or of the validity and
sufficiency of the franchises, licenses and permits of the Company in carrying
on its business.
Very truly yours,
-5-
Exhibit D
to
Bond Purchase
Contract
CONTENTS OF LETTER OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
The letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP will confirm that they are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations, and will state in effect that:
(a) in their opinion, the consolidated financial statements and
supporting financial schedules audited by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1934 Act and the applicable respective published
rules and regulations thereunder;
(b) on the basis of a limited review (but not an audit in
accordance with generally accepted auditing standards) of the
unaudited consolidated condensed financial statements, if any,
included in the Incorporated Documents and of the latest available
interim consolidated financial statements of the Company, a reading of
any unaudited pro forma financial statements included in the
Prospectus or the Incorporated Documents, a reading of all recent
minutes of meetings of the Board of Directors of the Company and the
Executive and Audit Committees thereof (or for meetings for which
minutes had not yet been prepared, discussions with a Company officer
of the actions taken thereat), of the shareholder of the Company and
of the shareholders and Boards of Directors of the Company's
consolidated subsidiaries, and discussions with officers of the
Company responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention which caused them to believe that:
(i) any material modifications should be made to the unaudited
consolidated condensed financial statements, if any,
included in the Incorporated Documents for them to be in
conformity with generally accepted accounting principles, or
-1-
(ii) the unaudited consolidated condensed financial statements,
if any, included in the Incorporated Documents do not comply
as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the related
published 1934 Act Regulations, or said consolidated
condensed financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements incorporated by reference
therein, or
(iii)the unaudited [income statement amounts], if any, included
in the Prospectus Supplement do not agree with the amounts
set forth in the unaudited consolidated financial statements
for those same periods or were not determined on a basis
substantially consistent with that of the audited statements
of income, or
(iv) any unaudited pro forma financial statements included in the
Prospectus or the Incorporated Documents do not comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or the pro
forma adjustments have not properly been applied to the
historical amounts in the compilation of those statements,
or
(v) (A) there was any change in the consolidated capital stock,
or any increase in the long-term debt of the Company and its
consolidated subsidiaries, or any decrease in consolidated
net assets, at a specified date not more than three days
prior to the date of such letter as compared with the
corresponding amounts shown in the most recent consolidated
balance sheet or condensed balance sheet incorporated by
reference in the Prospectus, or
(B) there was any decrease in consolidated operating
revenues or net income for the period from the date of the
latest consolidated balance sheet or condensed balance sheet
incorporated by reference in the Prospectus to a specified
date not later than three days prior to the date of such
letter as compared to such amounts for the corresponding
period during the previous year,
[except in all instances for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are disclosed
in such letter;]
-2-
(c) they have carried out certain procedures and made certain
findings, specified in such letter, with respect to certain amounts
and percentages included in the Prospectus and the Incorporated
Documents and such other items as the Representative may reasonably
request.
-3-