Document/Exhibit Description Pages Size
1: 8-K Current Report Dated 05/07/2003 3 11K
2: EX-1.1 Underwriting & Related Terms Agreement 18 77K
3: EX-4.1 7th Supplemental Indenture Dated 05/01/2003 20 80K
4: EX-4.2 Specimen of Note of 4.650% Notes Due 2015. 6 28K
5: EX-4.3 Specimen of Note of 5.625% Notes Due 2033. 6 28K
6: EX-5.1 Opinion & Consent of Snell & Wilmer 2 12K
7: EX-12.1 Computation of Earnings to Fixed Charges 1 7K
EX-4.1 — 7th Supplemental Indenture Dated 05/01/2003
Exhibit Table of Contents
Exhibit 4.1
---------------------------------------------
ARIZONA PUBLIC SERVICE COMPANY
TO
JPMORGAN CHASE BANK
TRUSTEE
Seventh Supplemental Indenture
Dated as of May 1, 2003
To
Indenture
Dated as of January 15, 1998
----------
4.650% Notes due 2015
5.625% Notes due 2033
---------------------------------------------
SEVENTH SUPPLEMENTAL INDENTURE, dated as of May 1, 2003, between Arizona
Public Service Company, a corporation duly organized and existing under the laws
of the State of Arizona (herein called the "Company"), having its principal
office at 400 North Fifth Street, Phoenix, Arizona 85004, and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), a New York banking
corporation, as Trustee (herein called the "Trustee") under the Indenture dated
as of January 15, 1998 between the Company and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities"), said Securities to be issued
in one or more series as provided in the Indenture.
Pursuant to the terms of the Indenture, the Company desires to provide for
the establishment of two new series of its Securities to be known as its 4.650%
Notes due 2015 (herein called the "Notes Due 2015") and its 5.625% Notes due
2033 (therein called the "Notes Due 2033") (the Notes Due 2015 and the Notes Due
2033 are herein collectively referred to as the "Notes") the forms and substance
of such Notes Due 2015 and such Notes Due 2033 and the terms, provisions, and
conditions thereof to be set forth as provided in the Indenture and this Seventh
Supplemental Indenture.
All things necessary to make this Seventh Supplemental Indenture a valid
agreement of the Company, and to make the Notes Due 2015 and the Notes Due 2033,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been done.
NOW, THEREFORE, THIS SEVENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes Due
2015 and the Notes Due 2033 by the Holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the Notes
Due 2015 and the Notes Due 2033 and the terms, provisions, and conditions
thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Notes Due 2015 and the Notes Due 2033, as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE NOTES DUE 2015 AND
THE NOTES DUE 2033
SECTION 101. There shall be and is hereby authorized a series of Securities
designated the "4.650% Notes due 2015" initially limited in aggregate principal
amount to $300,000,000, which amount shall be as set forth in any Company Order
for the authentication and delivery of Notes Due 2015. There shall be and is
hereby authorized a series of Securities designated the "5.625% Notes due 2033"
2
initially limited in aggregate principal amount to $200,000,000, which amount
shall be as set forth in any Company Order for the authentication and delivery
of Notes Due 2033. The Notes Due 2015 and the Notes Due 2033 shall mature and
the principal shall be due and payable together with all accrued and unpaid
interest thereon on May 15, 2015 and May 15, 2033, respectively, and shall be
issued in the form of registered Notes without coupons.
The foregoing principal amount of the Notes Due 2015 and the Notes Due 2033
may be increased from time to time as permitted by Section 301 of the Indenture.
All Notes Due 2015 and Notes Due 2033 need not be issued at the same time and
such series may be reopened at any time, without notice to, or the consent of,
the then existing Holders, for issuances of additional Notes Due 2015 and Notes
Due 2033. Any such additional Notes Due 2015 and Notes Due 2033 will be equal in
rank and have the same respective maturity, payment terms, redemption features,
and other terms, except for the payment of interest accruing prior to the issue
date of the further Notes Due 2015 and Notes Due 2033 and for the first payment
of interest following the issue date of the further Notes Due 2015 and Notes Due
2033, as those initially issued.
SECTION 102. The Notes Due 2015 and Notes Due 2033 shall each be issued in
certificated form, except that the Notes Due 2015 and Notes Due 2033 shall each
be issued initially as a Global Security to and registered in the name of Cede &
Co., as nominee of The Depository Trust Company, as Depositary therefor. Any
Notes Due 2015 and Notes Due 2033 to be issued or transferred to, or to be held
by, Cede & Co. (or any successor thereof) for such purpose shall bear the
depositary legend in substantially the form set forth at the top of the form of
Note Due 2015 in Article Two hereof and at the top of the form of Note Due 2033
in Article Three hereof (in lieu of that set forth in Section 204 of the
Indenture), unless otherwise agreed by the Company, such agreement to be
confirmed in writing to the Trustee. Each such Global Security may be exchanged
in whole or in part for Notes Due 2015 or Notes Due 2033, as applicable,
registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than such Depositary or a
nominee thereof only under the circumstances set forth in Clause (2) of the last
paragraph of Section 305 of the Indenture, or such other circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph of
Section 305 of the Indenture as to which the Company shall agree, such agreement
to be confirmed in writing to the Trustee. Principal of, and premium, if any,
and interest on the Notes Due 2015 and Notes Due 2033 will be payable, the
transfer of Notes Due 2015 and Notes Due 2033 will be registrable and Notes Due
2015 and Notes Due 2033, respectively, will be exchangeable for Notes Due 2015
and Notes Due 2033, respectively, bearing identical terms and provisions, at the
office or agency of the Company in the Borough of Manhattan, The City and State
of New York; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such address
as shall appear in the Security Register.
SECTION 103. Each Note Due 2015 will bear interest at the rate of 4.650%
and each Note Due 2033 will bear interest at the rate of 5.625%, each from May
12, 2003 or from the most recent Interest Payment Date (as hereinafter defined)
to which interest has been paid or duly provided for until the principal thereof
is paid or made available for payment, payable on May 15 and November 15 of each
year (each, an "Interest Payment Date"), commencing on November 15, 2003, to the
3
person in whose name such Note Due 2015 or Note Due 2033 or any Predecessor
Security is registered, at the close of business on May 1 and November 1, as the
case may be, whether or not a Business Day, immediately preceding the Interest
Payment Date. Any such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered holders on such
regular record date, and may be paid to the person in whose name the Note Due
2015 or Note Due 2033 (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of the Notes Due 2015 or Notes Due 2033, as the case may be,
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes Due 2015 or Notes Due 2033 may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. Interest will accrue from May 12,
2003 to, but not including, the relevant payment date. In the event that any
date on which interest is payable on the Notes Due 2015 or the Notes Due 2033 is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), in each case with the same force
and effect as if made on such date. A "Business Day" shall mean any day, except
a Saturday, a Sunday or a legal holiday in the City of New York on which banking
institutions are authorized or required by law, regulation or executive order to
close.
SECTION 104. The Company, at its option, may redeem all, or, from time to
time any part of the Notes Due 2015 or Notes Due 2033, upon notice as provided
in the Indenture at a Redemption Price equal to the greater of (a) the principal
amount of the Notes Due 2015 or Notes Due 2033 (or portion thereof) to be
redeemed plus interest (if any) accrued to the Redemption Date or (b) the
Make-Whole Amount with respect to the Notes Due 2015 or Notes Due 2033 to be
redeemed.
For purposes of this Section 104, the following terms shall have the
following meanings:
"MAKE-WHOLE AMOUNT" means the sum, as determined by a Quotation Agent,
of the present values of the principal amount of the Notes Due 2015 or Notes Due
2033 to be redeemed, together with scheduled payments of interest (exclusive of
interest to the Redemption Date) from the Redemption Date to the Stated Maturity
of the Notes Due 2015 or Notes Due 2033, in each case discounted to the
Redemption Date on a semi-annual basis, assuming a 360-day year consisting of
twelve 30-day months, at the Adjusted Treasury Rate, plus accrued interest (if
any) on the principal amount of the Notes Due 2015 or Notes Due 2033 being
redeemed to the Redemption Date.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
(i) 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
4
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term of the Notes Due 2015 or
Notes Due 2033 to be redeemed, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month) or (ii) 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 year equal to
the semi-annual 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, in each case calculated on the third Business Day
preceding the Redemption Date, plus in each case 0.150%.
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the Stated Maturity of the Notes Due 2015 or Notes
Due 2033, as the case may be, 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
Notes Due 2015 or Notes Due 2033, as the case may be.
"QUOTATION AGENT" means the Reference Treasury Dealer selected by the
Trustee after consultation with the Company.
"REFERENCE TREASURY DEALER" means each primary U.S. Government
securities dealer selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, if clause (ii) of the definition of Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee,
Reference Treasury Dealer Quotations for such Redemption Date.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
The Trustee shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in acting upon the
Company's calculation of any Redemption Price, including any Make-Whole Amount.
The Company shall give the Trustee written notice of the Redemption Price,
promptly after the calculation thereof.
5
Notwithstanding Section 1104 of the Indenture, any notice of redemption
given pursuant to said Section with respect to the foregoing redemption need not
set forth the Redemption Price but only the manner of calculation thereof.
SECTION 105. The Notes Due 2015 and the Notes Due 2033 shall be defeasible
pursuant to Section 1302 or 1303 of the Indenture.
ARTICLE TWO
FORM OF NOTES DUE 2015
SECTION 201. The Notes Due 2015 and the Trustee's certificate of
authentication to be endorsed thereon are to be substantially in the following
forms:
Form of Face of Security.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ARIZONA PUBLIC
SERVICE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARIZONA PUBLIC SERVICE COMPANY
4.650% Note due 2015
No. $300,000,000
CUSIP No. 040555 CE 2
Arizona Public Service Company, a corporation duly organized and existing
under the laws of Arizona (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Three Hundred Million Dollars on May 15, 2015, and to pay
interest thereon from May 12, 2003 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on May 15 and November 15 in each year, commencing November 15, 2003, at the
rate of 4.650%, until the principal hereof is paid or made available for
payment.
6
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, 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 for such
interest, which shall be May 1 or November 1, as the case may be, immediately
preceding the Interest Payment Date (whether or not a Business Day). Any such
interest not so punctually paid or duly provided for will 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 whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ARIZONA PUBLIC SERVICE COMPANY
By
-------------------------------------
Senior Vice President and
Chief Financial Officer
Attest:
----------------------------------
Secretary
7
Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of January 15, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, which is unlimited in aggregate principal amount.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail at the option of the Company, in whole or in part, from
time to time at a Redemption Price equal to the greater of (a) the principal
amount of the Securities (or portion thereof) of this series to be redeemed plus
interest (if any) accrued to the Redemption Date or (b) the Make-Whole Amount
(as defined below) with respect to the Securities of this series to be redeemed
(the "Redemption Price").
If notice has been given as provided in the Indenture and funds for the
redemption of any Securities (or any portion thereof) called for redemption
shall have been made available on the Redemption Date referred to in such
notice, such Securities (or any portion thereof) will cease to bear interest on
the date fixed for such redemption specified in such notice and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price.
Notice of any optional redemption of Securities of this series (or any
portion thereof) will be given to Holders at their addresses, as shown in the
Security Register for such Securities, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will specify,
among other items, the Redemption Price or, if not then known, the manner of
calculation thereof, and the principal amount of the Securities of this series
held by such Holder to be redeemed. If less than all of the Securities of this
series are to be redeemed at the option of the Company, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the portion of
such Securities to be redeemed in whole or in part.
As used herein:
"MAKE-WHOLE AMOUNT" means the sum, as determined by a Quotation Agent,
of the present values of the principal amount of the Securities of this series
to be redeemed, together with scheduled payments of interest (exclusive of
interest to the Redemption Date) from the Redemption Date to the Stated Maturity
of the Securities of this series, in each case discounted to the Redemption Date
on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day
months, at the Adjusted Treasury Rate, plus accrued interest (if any) on the
principal amount of the Securities of this series being redeemed to the
Redemption Date.
8
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
(i) 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 of the Securities of this
series, yields for the two published maturities most closely corresponding to
the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) 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 year equal to the semi-annual 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, in each
case calculated on the third Business Day preceding the Redemption Date, plus in
each case 0.150%.
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the Stated Maturity of the Securities of this series
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 this series.
"QUOTATION AGENT" means the Reference Treasury Dealer selected by the
Trustee after consultation with the Company.
"REFERENCE TREASURY DEALER" means each primary U.S. Government
securities dealer selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, if clause (ii) of the definition of Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee,
Reference Treasury Dealer Quotations for such Redemption Date.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
The Securities of this series will not be subject to any sinking fund.
9
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series 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
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee without
the consent of such Holders in certain limited circumstances or with the consent
of the Holders of 66-2/3% in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
10
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Form of Trustee's Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: JPMORGAN CHASE BANK
AS TRUSTEE
By
-------------------------------------
AUTHORIZED OFFICER
11
ARTICLE THREE
FORM OF NOTES DUE 2033
SECTION 301. The Notes Due 2033 and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
Form of Face of Security
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ARIZONA PUBLIC
SERVICE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARIZONA PUBLIC SERVICE COMPANY
5.625% Note due 2033
No. $200,000,000
CUSIP No. 040555 CF 9
Arizona Public Service Company, a corporation duly organized and existing
under the laws of Arizona (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Two Hundred Million Dollars on May 15, 2033, and to pay
interest thereon from May 12, 2003 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually in arrears
on May 15 and November 15 in each year, commencing November 15, 2003, at the
rate of 5.625%, until the principal hereof is paid or made available for
payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, 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 for such
interest, which shall be May 1 or November 1, as the case may be, immediately
preceding the Interest Payment Date (whether or not a Business Day). Any such
interest not so punctually paid or duly provided for will 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 whereof shall be
12
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ARIZONA PUBLIC SERVICE COMPANY
By
-------------------------------------
Senior Vice President and
Chief Financial Officer
Attest:
----------------------------------
Secretary
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of January 15, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
13
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, which is unlimited in aggregate principal amount.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail at the option of the Company, in whole or in part, from
time to time at a Redemption Price equal to the greater of (a) the principal
amount of the Securities (or portion thereof) of this series to be redeemed plus
interest (if any) accrued to the Redemption Date or (b) the Make-Whole Amount
(as defined below) with respect to the Securities of this series to be redeemed
(the "Redemption Price").
If notice has been given as provided in the Indenture and funds for the
redemption of any Securities (or any portion thereof) called for redemption
shall have been made available on the Redemption Date referred to in such
notice, such Securities (or any portion thereof) will cease to bear interest on
the date fixed for such redemption specified in such notice and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price.
Notice of any optional redemption of Securities of this series (or any
portion thereof) will be given to Holders at their addresses, as shown in the
Security Register for such Securities, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will specify,
among other items, the Redemption Price or, if not then known, the manner of
calculation thereof, and the principal amount of the Securities of this series
held by such Holder to be redeemed. If less than all of the Securities of this
series are to be redeemed at the option of the Company, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the portion of
such Securities to be redeemed in whole or in part.
As used herein:
"MAKE-WHOLE AMOUNT" means the sum, as determined by a Quotation Agent,
of the present values of the principal amount of the Securities of this series
to be redeemed, together with scheduled payments of interest (exclusive of
interest to the Redemption Date) from the Redemption Date to the Stated Maturity
of the Securities of this series, in each case discounted to the Redemption Date
on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day
months, at the Adjusted Treasury Rate, plus accrued interest (if any) on the
principal amount of the Securities of this series being redeemed to the
Redemption Date.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
(i) 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 of the Securities of this
series, yields for the two published maturities most closely corresponding to
14
the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) 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 year equal to the semi-annual 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, in each
case calculated on the third Business Day preceding the Redemption Date, plus in
each case 0.150%.
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the Stated Maturity of the Securities of this series
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 this series.
"QUOTATION AGENT" means the Reference Treasury Dealer selected by the
Trustee after consultation with the Company.
"REFERENCE TREASURY DEALER" means each primary U.S. Government
securities dealer selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, if clause (ii) of the definition of Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee,
Reference Treasury Dealer Quotations for such Redemption Date.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
The Securities of this series will not be subject to any sinking fund.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
15
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series 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
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee without
the consent of such Holders in certain limited circumstances or with the consent
of the Holders of 66-2/3% in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
16
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: JPMORGAN CHASE BANK
AS TRUSTEE
By
-------------------------------------
AUTHORIZED OFFICER
ARTICLE FOUR
ORIGINAL ISSUE OF NOTES DUE 2015 AND NOTES DUE 2033
SECTION 401. Subject to Section 101, the Notes Due 2015 and the Notes Due
2033 in the aggregate principal amount of $500,000,000 may, upon execution of
this Seventh Supplemental Indenture, or from time to time thereafter, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes Due 2015 and Notes
17
Due 2033 in accordance with a Company Order delivered to the Trustee by the
Company, without any further action by the Company.
ARTICLE FIVE
PAYING AGENT AND REGISTRAR
SECTION 501. JPMorgan Chase Bank will be the Paying Agent and Security
Registrar for the Notes Due 2015 and the Notes Due 2033.
ARTICLE SIX
SUNDRY PROVISIONS
SECTION 601. Except as otherwise expressly provided in this Seventh
Supplemental Indenture or in the form of Notes Due 2015 or Notes Due 2033 or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of Notes Due 2015 or Notes Due 2033 that are defined in
the Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 602. The Indenture, as heretofore supplemented and amended, and as
supplemented by this Seventh Supplemental Indenture, is in all respects ratified
and confirmed, and this Seventh Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.
SECTION 603. The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture, as heretofore supplemented
and amended, set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Seventh Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general, each and every term and condition
contained in Article Six of the Indenture shall apply to and form a part of this
Seventh Supplemental Indenture with the same force and effect as if the same
were herein set forth in full with such omissions, variations, and insertions,
if any, as may be appropriate to make the same conform to the provisions of this
Seventh Supplemental Indenture.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
18
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
ARIZONA PUBLIC SERVICE COMPANY
By: Barbara M. Gomez
------------------------------------
Barbara M. Gomez
Treasurer
Attest:
Betsy A. Pregulman
----------------------------------
Betsy A. Pregulman
Associate Secretary
JPMORGAN CHASE BANK, as Trustee
By: Kathleen Perry
------------------------------------
Attest:
Diane Darconte
----------------------------------
Name: Diane Darconte
Title: Trust Officer
19
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the ____ day of May, 2003, before me personally came Barbara M. Gomez,
to me known, who, being by me duly sworn, did depose and say that she is the
Treasurer of Arizona Public Service Company, one of the corporations described
in and which executed the foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that she signed her name thereto by like authority.
Debra L. Blondin
----------------------------------------
Notary Public
My Commission Expires:
June 7, 2004
------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 9th day of May, 2003, before me personally came Kathleen Perry, to
me known, who, being by me duly sworn, did depose and say that he/she is Vice
President of JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank),
one of the corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he/she signed
his/her name thereto by like authority.
Emily Fayan
----------------------------------------
Notary Public
My Commission Expires:
December 31, 2001
------------------------
20
Dates Referenced Herein and Documents Incorporated by Reference
6 Subsequent Filings that Reference this Filing
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