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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) February 25, 1999
SOUTHWESTERN PUBLIC SERVICE COMPANY
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(Exact Name of Registrant as Specified in Charter)
New Mexico
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(State or Other Jurisdiction
of Incorporation)
1-3789 75-0575400
_________________ _________________
(Commission File No.) (IRS Employer
Identification No.)
Tyler at Sixth, Amarillo, Texas 79101
_______________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (303) 571-7511
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ITEM 5. OTHER EVENTS
On February 25, 1999, Southwestern Public Service Company (the "Company")
entered into a purchase agreement (the "Purchase Agreement") with Salomon Smith
Barney Inc. and the purchasers listed in Schedule I thereto (the "Purchasers"),
relating to the sale by the Company to the Purchasers of $100,000,000 aggregate
principal amount of Series A Senior Notes, 6.20% due March 1, 2009 (the
"Notes") issued under an Indenture dated as of February 1, 1999 between the
Company and The Chase Manhattan Bank, as trustee (the "Indenture") as
supplemented by the First Supplemental Indenture dated as of March 1, 1999
between the Company and The Chase Manhattan Bank, as trustee (the "First
Supplemental Indenture"). The Notes have been registered under a registration
statement (File No. 333-05199) on Form S-3 filed with the Securities and
Exchange Commission pursuant to Rule 415 under the Securities Act of 1933, as
amended. In connection with the execution of the Purchase Agreement, the
Indenture and the First Supplemental Indenture, the Company is filing exhibits
as part of this Form 8-K. See "Item 7. Financial Statements and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(C) EXHIBITS
Exhibit A. Purchase Contract dated February 25, 1999 between
the Company and the Purchasers.
Exhibit B. Indenture dated February 1, 1999 between the Company
and The Chase Manhattan Bank, as Trustee.
Exhibit C. First Supplemental Indenture dated March 1, 1999
between the Company and The Chase Manhattan Bank, as
Trustee.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SOUTHWESTERN PUBLIC SERVICE COMPANY
/s/ Brian P. Jackson
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Brian P. Jackson
Senior Vice President, Finance and
Administrative Services
Chief Financial Officer and Treasurer
Dated: February 25, 1999
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Exhibit 99.1
EXHIBIT A
SOUTHWESTERN PUBLIC SERVICE COMPANY
PURCHASE CONTRACT
Southwestern Public Service Company, a New Mexico 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 Notes (as hereinafter defined).
1. Purchasers and Representative. If there shall be two or more
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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 Notes. The Company proposes to issue and sell the
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Notes as a single series under its Indenture, dated as of February 1, 1999 (the
"Original Indenture"), to The Chase Manhattan Bank, as trustee (the "Trustee"),
as it will be supplemented by a supplemental indenture creating the Notes (said
Original Indenture, as supplemented, and said supplemental indenture being
hereinafter referred to as the "Indenture" and the "Supplemental Indenture",
respectively). The Notes 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 "Notes" as used in this Contract shall mean the notes described in this
paragraph.
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3. Representations and Warranties of the Company. The Company
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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 $220,000,000, including the Notes, 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 Notes (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 Notes 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 Notes
and relies on Rule 462(b) of the 1933 Act Regulations for such registration
statement to become effective upon filing
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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 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
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"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 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. Arthur Andersen 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,
whether or not arising in the ordinary course of business, and (ii) the
Company has not entered into any transactions which are material to the
Company, other than in the ordinary course of business; and, except as so
reflected or contemplated, the Company does not have any contingent
obligations which are material to the Company.
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New Mexico
with corporate power
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and authority to own its properties and conduct its business as described
in the Registration Statement.
(g) The issuance and sale by the Company of the Notes 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 Notes 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 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 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 is a party or by which it
may be bound, or any law, administrative regulation or administrative or
court order.
(i) All approvals and authorizations from the New Mexico Public
Utility Commission which are required for the valid authorization and
issuance of the Notes and the valid sale thereof under this Contract, have
been obtained and are in full force and effect and the approval of no other
governmental or regulatory authority or body is necessary in connection
with the issuance and sale by the Company of the Notes pursuant to this
Contract, except that there must be compliance with the securities laws in
the jurisdictions in which the Notes are to be offered and sold.
(j) The franchises held by the Company, together with the applicable
Certificates of Convenience and Necessity issued by the New Mexico Public
Utility Commission, give the Company all necessary authority for the
maintenance and operation of its properties and business as now conducted,
and are free from burdensome restrictions or conditions of an unusual
character.
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(k) Any certificate signed by any officer of the Company and
delivered to the Representative or to Cahill Gordon & Reindel, 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
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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 Notes 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,
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the Representative shall furnish the Company in writing any information
regarding the public offering, if any, of the Notes, 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 Notes and payment
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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, Greene & MacRae, L.L.P., 125 West 55th Street, New York, New
York, 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. The time and date of such payment and delivery are herein
called the "Closing Date".
The Notes 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 Notes 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 The Chase Manhattan Bank, New York, New York, or
at such other place as may be agreed upon by the Company and the Representative.
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7. Covenants of the Company. The Company covenants with each
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Purchaser that:
(a) The Company will promptly deliver to the Representative two
signed copies of the registration statement relating to the Notes 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 Cahill Gordon & Reindel.
(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, printing, issuance and delivery of the
Notes as provided in paragraph 6 hereof, (C) the preparation, execution,
filing and recording of the Indenture and the Supplemental Indenture, (D)
the preparation of this Contract, and (E) 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 Notes, (iii) the expenses incurred
in connection with the qualification of the Notes under securities laws in
accordance with subparagraph (g) of this paragraph 7, including
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filing fees and reasonable fees and disbursements of Cahill Gordon &
Reindel 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 Notes. If
this Contract is terminated in accordance with subparagraph (a)(i), (a)(ii)
or (b) of paragraph 13 hereof, the Company will reimburse the Purchasers
for all their out-of-pocket expenses, including the fee and disbursements
of Cahill Gordon & Reindel. 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 Notes 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 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 Notes 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.
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(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, if any)
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 Notes
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 Notes 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.
(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 Notes 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
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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
Notes is required to be delivered under
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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 Moody's Investors Service,
Inc. or Standard & Poor's Ratings Group to any debt securities of the
Company shall have been lowered or if Moody's 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 Notes 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 Notes;
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
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of the Purchasers to purchase and pay for the Notes shall be subject to the
accuracy when made of the representations and warranties on the part of the
Company contained herein or in 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 descrip-
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tion of the Notes, 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 New Mexico Public Utility
Commission authorizing and approving the issuance and sale of the Notes
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, Lamb, Greene & MacRae,
L.L.P.; Hinkle, Cox, Eaton, Coffield & Hensley; Rainey, Ross, Rice & Binns;
and Foulston & Siefkin, counsel for the Company, and Cahill Gordon &
Reindel, counsel for the Purchasers, substantially in the forms thereof
attached hereto as Exhibits B, C, D, E and F 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 Arthur Andersen LLP, substantially to
the effect set forth in Exhibit G hereto, with reproduced or conformed
copies thereof for each of the Purchasers.
(f) At the Closing Date, Cahill Gordon & Reindel, counsel for the
Purchasers, shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Notes 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;
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and all proceedings taken by the Company in connection with the issuance
and sale of the Notes as herein contemplated shall be satisfactory in form
and substance to the Representative and Cahill Gordon & Reindel.
9. Conditions of Company's Obligation. The obligation of the
----------------------------------
Company to deliver the Notes 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 New Mexico Public Utility
Commission authorizing and approving the issuance and sale of the Notes
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
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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
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
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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 Notes 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 Notes 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 Notes 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 Notes.
(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 in-
<PAGE>
-14-
curred, 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 Notes.
(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 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
<PAGE>
-15-
party or parties and satisfactory to the indemnified party or parties who
shall be defendant or defendants in such action. Such indemnified party
shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the
defense of such action or the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to have charge of such
defense within a reasonable time after notice by the indemnified party or
such indemnified party shall have reasonably concluded that there may be
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of
the indemnified party). 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 Notes 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 Notes
pursuant to this Contract shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to
this
<PAGE>
-16-
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 Notes as set forth on such cover.
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 Notes 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
<PAGE>
-17-
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 Notes set forth 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
Notes which it or they have agreed to purchase as provided in paragraph 4 hereof
(the "Defaulted Notes"), and:
(a) if the aggregate principal amount of the Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Notes, 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 Notes 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 Notes, then the Non-Defaulting Purchasers shall be
obligated to purchase and pay for the Defaulted Notes 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 Notes exceeds
10% of the aggregate principal amount of the Notes, 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 Notes
in such principal amounts as may be agreed upon and upon the terms herein
set forth; if, however, during such 24 hour period the
<PAGE>
-18-
Non-Defaulting Purchasers shall not have completed such arrangements for
the purchase of all the Defaulted Notes, 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 Notes 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 the Defaulted Notes as above provided, then
this Contract shall terminate.
In the event that the sale and delivery of all or any principal amount
of the Notes 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 Notes 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;
<PAGE>
-19-
(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,
whether or not arising in the ordinary course of business, the effect of
which is, in the reasonable judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable for the Purchasers to
market the Notes, or to enforce contracts for the sale of the Notes, 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 Notes, or to enforce
contracts for the sale of the Notes, upon the terms specified in the
Prospectus; or
(iv) the rating assigned by Moody's 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
Moody's 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 Notes 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.
<PAGE>
-20-
(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 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 Notes.
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 Notes 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 1225 17th Street,
Denver, CO 80202, Attention: Senior Vice President and Chief Financial Officer,
with a copy to (212-424-8500) and confirmed in writing to LeBoeuf, Lamb,
<PAGE>
-21-
Greene & MacRae, L.L.P., 125 West 55th Street, New York, NY 10019, Attention:
Susan A. Marshall.
<PAGE>
-22-
The Company and the Representative, on behalf of the Purchasers, have
caused this Purchase Contract to be executed and delivered this 25th day of
February, 1999.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By: /s/ Brian P. Jackson
--------------------
Name: Brian P. Jackson
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
SALOMON SMITH BARNEY INC.
As Representative of the Purchasers
listed in Schedule I hereto
By: /s/ Paul T. Addison
-------------------
Name: Paul T. Addison
Title: Managing Director
<PAGE>
SCHEDULE I
----------
PURCHASERS
PRINCIPAL AMOUNT OF
NOTES
PURCHASER
- ---------
Salomon Smith Barney Inc. $ 60,000,000
Chase Securities Inc. 20,000,000
NationsBanc Montgomery Securities LLC 20,000,000
------------
Total $100,000,000
============
REPRESENTATIVE
Name: Salomon Smith Barney Inc.
Address: 388 Greenwich Street
New York, New York 10013
Attention: Peter Kind
Telecopy No.: 212-816-0901
<PAGE>
SCHEDULE II
-----------
INFORMATION REGARDING THE BONDS
AND THE SALE THEREOF
. REGISTRATION STATEMENT NO.: 333-05199
. AGGREGATE PRINCIPAL AMOUNT(S), MATURITY DATE(S) AND
INTEREST RATE(S):
<TABLE>
<CAPTION>
============================================================================================================================
PRINCIPAL MATURITY INTEREST
AMOUNT DATE RATE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
$100,000,000 March 1, 2009 6.20%
============================================================================================================================
</TABLE>
. INTEREST PAYMENT DATES: March 1 and September 1
. RECORD DATES: February 15 and August 15
. INTEREST TO ACCRUE FROM: March 2, 1999
. PRICE TO BE PAID TO COMPANY: 99.196% of the principal amount, plus accrued
interest, if any, from March 2, 1999 to the date of payment by, and
delivery to, the Purchasers.
.
METHOD OF AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Wire transfer
of immediately available funds.
. INITIAL PUBLIC OFFERING PRICE (IF ANY): 99.846% of the principal amount,
plus accrued interest, if any, from March 2, 1999 to the date of payment
by, and delivery to, the ultimate purchaser.
. CLOSING DATE: March 2, 1999
. OPTIONAL REDEMPTION: The Notes will be redeemable at the option of the
Company at any time at a redemption price equal to the greater of (i) 100%
of the principal amount of the notes to be redeemed or (ii) the sum of the
present values of the remaining scheduled payments of principal and
interest thereof discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Yield (as defined), plus 0.15%, plus, in each case, accrued and
unpaid interest to the redemption date.
<PAGE>
. SINKING FUND: None.
. BASIC PROSPECTUS: The Basic Prospectus referred to in the Note Purchase
Contract shall mean and refer to the Basic Prospectus dated July 11, 1996.
<PAGE>
Exhibit A
to
Note Purchase Contract
----------------------
SOUTHWESTERN PUBLIC SERVICE COMPANY
CERTIFICATE
Pursuant to paragraph 8(c) of the Purchase Contract, dated February
25, 1999 (the "Contract"), between Southwestern Public Service Company, a New
Mexico 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 New Mexico Public Utility Commission authorizing
and approving the issuance and sale of the Notes 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.
A-1
<PAGE>
(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 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. Arthur Andersen 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, whether or not arising in the
ordinary course of business and (ii) the Company has not entered into any
transactions which are material to the Company, other than in the ordinary
course of business; and, except as so reflected or contemplated, the
Company does not have any contingent obligations which are material to the
Company.
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New Mexico
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), and (j) 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.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed on its behalf this 2nd day of March 1999.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By: _____________________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
to
Note Purchase Contract
----------------------
[LETTERHEAD OF LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.]
[Purchasers]
Ladies and Gentlemen:
We have acted as counsel to Southwestern Public Service Company (the
"Company") in connection with the sale by the Company of $100,000,000 aggregate
principal amount of its Senior Notes (the "Notes"), which are registered
pursuant to the registration statement (File No. 333-05199) of the Company for
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of up to $220,000,000 aggregate principal amount of securities, including the
Notes. This opinion is being delivered to you pursuant to Section 8(d) of the
Purchase Contract, dated February 25, 1999 (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 Notes. 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 Notes,
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 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
B-1
<PAGE>
Company contained in the Purchase Contract and upon the certificates of public
officials and of officers of the Company being delivered to you thereunder.
On the basis of the foregoing, and subject to the limitations and
qualifications set forth herein, it is our opinion that:
(i) 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 obligation 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.
(ii) The Notes are in due and proper form and the issuance and sale
of the Notes 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 Notes will be legal, valid and binding obligations of
the Company enforceable (subject to the exceptions and limitations referred
to in paragraph (i) hereof) in accordance with their terms.
(iii) The Indenture is qualified under the Trust Indenture Act of
1939, as amended.
(iv) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(v) We are not aware of any approval, authorization, consent or
other order of any federal regulatory board or body, including under the
Public Utility Holding Company Act of 1935, as amended, which 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 Notes pursuant to the Purchase Contract.
(vi) The Notes and the Indenture conform as to legal matters to the
description of the terms thereof contained
B-2
<PAGE>
in the Registration Statement and the Prospectus, as amended or
supplemented to the date hereof.
(vii) 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.
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. 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
B-3
<PAGE>
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.
This opinion is limited to the laws of the State of New York 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. We have
relied, with your consent, as to all matters governed by the laws of the States
of New Mexico and Texas, upon the opinion of Hinkle, Cox, Eaton, Coffield &
Hensley LLP, as to all matters governed by the laws of the States of Oklahoma,
upon the opinion of Rainey, Ross, Rice & Binns, and as to all matters governed
by the laws of the State of Kansas, upon the opinion of Foulston & Siefkin.
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.
The Chase Manhattan Bank, is hereby authorized to rely upon this
letter 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
Notes or any other party to which it is not specifically addressed or to which
reliance has not expressly been permitted hereby.
Very truly yours,
B-4
<PAGE>
Exhibit C
to
Note Purchase Contract
----------------------
[LETTERHEAD OF HINKLE, COX, EATON, COFFIELD & HENSLEY LLP]
[Purchasers]
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the sale by
Southwestern Public Service Company (the "Company") of $100,000,000 aggregate
principal amount of [Senior] Notes of the Company (the "Notes"), which are
registered pursuant to the registration statement (File No. 333-05199) of the
Company for the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of up to $220,000,000 aggregate principal amount of securities,
including the Notes. This opinion is being delivered to you pursuant to Section
8(d) of the Purchase Contract, dated February 25, 1999 (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 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 Notes. 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 Notes, the proceedings before The Public
Utility Commission of the State of New Mexico with respect to the issuance and
sale of the Notes 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 to various
questions of fact (but not as to legal conclusions) upon discussions with
officers and representatives of the Company and the
C-1
<PAGE>
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
paragraph (vi) 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 New Mexico
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.
(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 obligation 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 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 provided
thereby.
(iii) The Notes are in due and proper form and the issuance and sale
of the Notes 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 Notes 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.
C-2
<PAGE>
(iv) All approvals and authorizations of the New Mexico Public
Utility Commission, which are required for the valid authorization and
issuance and the valid sale of the Notes under the Purchase Contract, have
been obtained and are in full force and effect, and the approval of no
other governmental regulatory body (including the State Corporation
Commission of Kansas and the Corporation Commission of Oklahoma) is
required in connection therewith. Copies of the Prospectus must be filed
with the State Corporation Commission of Kansas, but this information
filing is not a prerequisite to the authorization, issuance or sale of the
Notes. We express no opinion as to compliance with Blue Sky laws or the
Public Utility Holding Company Act of 1935, as amended.
(v) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(vi) With minor exceptions relating to the use of streets and
highways outside incorporated communities in New Mexico, Oklahoma, and
Texas and with respect to the right of the City of Pampa, Texas, to
purchase properties of the Company within its limits at a purchase price to
be determined upon appraisal, the Company holds valid franchises in the
territory in which it operates which have no burdensome restrictions and
are adequate to conduct its business in such territory.
(vii) The issuance of and the sale by the Company to you of the Notes
pursuant to the terms of the Purchase Contract and the fulfillment by the
Company of the other terms thereof will not result in a breach of any of
the terms or provisions of, or constitute a default under, the Company's
Restated Articles of Incorporation, as amended, its By-Laws, or any
indenture, mortgage, deed of trust, or other agreement or instrument known
to us to which the Company is now a party.
(viii) 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 Notes and the facsimile signature of the
Secretary or an Assistant Secretary of the Company attesting the corporate
seal in lieu of his or her manual signature on the Notes 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 New Mexico; and the facsimile signatures of such
officers on the Notes have
C-3
<PAGE>
the same legal effect as though they had manually signed and attested the
Notes as such respective officers.
(ix) 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.
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. 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
C-4
<PAGE>
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.
This opinion is limited to the laws of the State of New York and the
State of New Mexico and the federal law of the United States of America. We
have relied, with your consent, as to all matters governed by the laws of the
State of Oklahoma, upon the opinion of Rainey, Ross, Rice & Binns, and as to all
matters governed by the laws of the State of Kansas, upon the opinion of
Foulston & Siefkin. 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.
The Chase Manhattan Bank, is hereby authorized to rely upon this
letter as if this letter were addressed to it. LeBoeuf, Lamb, Greene & MacRae,
L.L.P., counsel for the Company, and Cahill Gordon & Reindel, counsel for the
Purchasers, are hereby authorized to rely upon this letter as to matters
governed by the laws of the State of New Mexico as if this letter were addressed
to them. This letter is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Notes or any other party to which it is not
specifically addressed or to which reliance has not expressly been permitted
hereby.
Very truly yours,
C-5
<PAGE>
Exhibit D
to
Note Purchase Contract
----------------------
[LETTERHEAD OF RAINEY, ROSS, RICE & BINNS]
[Purchasers]
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the sale by
Southwestern Public Service Company (the "Company") of $100,000,000 aggregate
principal amount of Senior Notes of the Company (the "Notes"), which are
registered pursuant to the registration statement (File No. 333-05199) of the
Company for the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of up to $220,000,000 aggregate principal amount of securities,
including the Notes. This opinion is being delivered to you pursuant to Section
8(d) of the Purchase Contract, dated February 25, 1999 (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.
Subject to the limitations and qualifications set forth herein, it is
our opinion that:
(i) Insofar as the laws of Oklahoma are concerned, the issuance of
the Notes has been duly authorized by all necessary corporate action of the
Company and (assuming that the Notes delivered today to you have been
authenticated by a duly authorized officer of the Trustee), such Notes have
been validly issued, are in due legal form and are the legal, valid, and
enforceable obligations of the Company.
(ii) The Company is duly registered in Oklahoma as a foreign
corporation and is legally authorized to own property and to carry on the
business in which it is engaged in Oklahoma.
D-1
<PAGE>
(iii) No approvals or authorizations of the Corporation Commission of
Oklahoma are required for the valid sale of the Notes under the Purchase
Contract and no other approval of any Oklahoma public regulatory body is
required in connection with the authorization, issuance and sale of the
Notes by the Company. We express no opinion as to compliance by the Company
with Blue Sky laws.
(iv) With minor exceptions relating to the use of streets and
highways outside of incorporated communities in Oklahoma, the Company holds
valid franchises in the territory of Oklahoma in which it operates which
are without burdensome restrictions and are adequate for the conduct of the
business of the Company in such territory.
(v) The statements stated in the Registration Statement and the
Prospectus to be set forth in the reliance upon us, as experts, are
correct.
This opinion is limited to the laws of the State of Oklahoma. 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.
The Chase Manhattan Bank is hereby authorized to rely upon this letter
as if this letter were addressed to it. LeBoeuf, Lamb, Greene & MacRae, L.L.P.
and Hinkle, Cox, Eaton, Coffield & Hensley, counsel for the Company, and Cahill
Gordon & Reindel, counsel for the Purchasers, are hereby authorized to rely upon
this letter as to matters governed by the laws of the State of Oklahoma as if
this letter were addressed to them. This letter is not being delivered for the
benefit of, nor may it be relied upon by, the holders of the Notes or any other
party to which it is not specifically addressed or to which reliance has not
expressly been permitted hereby.
Very truly yours,
D-2
<PAGE>
Exhibit E
to
Note Purchase Contract
----------------------
[LETTERHEAD OF FOULSTON & SIEFKIN]
[Purchasers]
Ladies and Gentlemen:
We have acted as counsel to Southwestern Public Service Company (the
"Company") in connection with the sale by the Company of $100,000,000 aggregate
principal amount of [Senior] Notes of the Company (the "Notes"), which are
registered pursuant to the registration statement (File No. 333-05199) of the
Company for the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of up to $220,000,000 aggregate principal amount of securities,
including the Notes. This opinion is being delivered to you pursuant to Section
8(d) of the Purchase Contract, dated February 25, 1999 (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.
On the basis of the foregoing, and subject to the limitations and
qualifications set forth herein, it is our opinion that:
(i) No approval or authorization of any Kansas public regulatory body
(including the State Corporation Commission of the State of Kansas) is
required for the valid authorization, issue and sale of the Notes pursuant
to the terms of the Purchase Contract. Copies of the Registration Statement
and the Prospectus have been filed with the State Corporation Commission of
the State of Kansas, but this information filing is not a prerequisite to
the authorization, issuance, or sale of the Notes. We express no opinion as
to the compliance by the Company with Blue Sky laws.
(ii) The Company is duly registered in the State of Kansas as a
foreign corporation and is legally authorized
E-1
<PAGE>
to own property and to carry on the business in which it is engaged in
Kansas.
(iii) The Company holds valid franchises or other authorities in the
territory in Kansas in which it operates which are without burdensome
restrictions and are adequate for the conduct of the business of the
Company in such territory.
(iv) The statements stated in the Registration Statement and
Prospectus to be set forth in reliance upon us, as experts, are correct.
This opinion is limited to the laws of the State of Kansas. 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.
The Chase Manhattan Bank is hereby authorized to rely upon this letter
as if this letter were addressed to it. LeBoeuf, Lamb, Greene & MacRae, L.L.P.
and Hinkle, Cox, Eaton, Coffield & Hensley, counsel for the Company, and Cahill
Gordon & Reindel, counsel for the Purchasers, are hereby authorized to rely upon
this letter as to matters governed by the laws of the State of Kansas as if this
letter were addressed to them. This letter is not being delivered for the
benefit of, nor may it be relied upon by, the holders of the Notes or any other
party to which it is not specifically addressed or to which reliance has not
expressly been permitted hereby.
Very truly yours,
E-2
<PAGE>
Exhibit F
to
Note Purchase Contract
----------------------
[LETTERHEAD OF CAHILL GORDON & REINDEL]
[Purchasers]
Ladies and Gentlemen:
We have acted as counsel for the Purchasers named in the Purchase
Contract, dated February 25, 1999 (the "Purchase Contract"), among you and
Southwestern Public Service Company, a New Mexico corporation (the "Company"),
in connection with the sale by the Company to you, severally, and the purchase
by you, severally, of $100,000,000 aggregate principal amount of Senior Notes of
the Company (the "Notes"), being issued under its Indenture, dated as of
February 1, 1999, to The Chase Manhattan Bank, National Association, as trustee,
and all indentures supplemental thereto, including the Supplemental Indenture
dated as of March 1, 1999 creating the Notes (the "Supplemental Indenture")
(said Indenture dated as of February 1, 1999 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):
(i) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming
F-1
<PAGE>
the Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding obligation 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 creditors' rights, including without limitation bankruptcy
and insolvency laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture.
(ii) The Indenture is qualified under the Trust Indenture Act of
1939, as amended.
(iii) The Notes are in due and proper form and the issuance and sale
of the Notes 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 Notes will be legal, valid and binding
obligations of the Company enforceable (subject to the exceptions and
limitations referred to in paragraph (i) hereof) in accordance with their
terms.
(iv) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(v) The Notes and the Indenture conform as to legal matters to the
description of the terms thereof contained in the Registration Statement
and the Prospectus, as amended or supplemented to the date hereof.
(vi) 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 data included or incorporated by reference therein.
We have participated in discussions with officers and other
representatives of the Company, counsel for the Company,
F-2
<PAGE>
representatives of the Company's independent public accountants and your
representatives 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 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 (v) 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, 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 laws of the States of New Mexico and Texas, upon the opinion of Hinkle, Cox,
Eaton, Coffield & Hensley LLP, as to all matters governed by the laws of the
States of Oklahoma, upon the opinion of Rainey, Ross, Rice & Binns, and as to
all matters governed by the laws of the State of Kansas, upon the opinion of
Foulston & Siefkin, each of even date herewith addressed to you.
Very truly yours,
F-3
<PAGE>
Exhibit G
to
Note Purchase Contract
----------------------
CONTENTS OF LETTER OF ARTHUR ANDERSEN LLP
The letter of Arthur Andersen 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:
(i) 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;
(ii) 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, Audit and Pricing Committees thereof (or for
meetings for which minutes had not yet been prepared, discussions with a
Company officer of the actions taken thereat) and of the shareholder of the
Company, 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:
(iii) 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
(iv) 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 consoli-
G-1
<PAGE>
dated 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
(v) 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
(vi) 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
(vii) (A) there was any change in the consolidated capital stock,
or any increase in the long-term debt of the Company, 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;]
(viii) 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.
G-2
<PAGE>
Exhibit 99.2
EXHIBIT B
SOUTHWESTERN PUBLIC SERVICE COMPANY
DEBT SECURITIES
INDENTURE
________________________________________________________________________________
Dated as of February 1, 1999
THE CHASE MANHATTAN BANK, Trustee
<PAGE>
PARTIAL CROSS-REFERENCE TABLE
INDENTURE SECTION TIA SECTION
2.05 317(b)
2.06 312(a)
2.11 316(a)(last sentence)
4.05 314(a)(4)
4.06 314(a)(1)
6.03 317(a)(1)
6.04 316(a)(1)(B)
6.05 316(a)(1)(A)
6.07 317(a)(1)
7.01 315(a)
315(d)
7.04 315(b)
7.05 313(a), 313(d)
7.07 310(a), 310(b)
7.09 310(a)(2)
8.02 310(a), 310(b)
10.04 316(c)
11.01 318(a)
11.02 313(c)
11.03 314(c)(1), 314(c)(2)
11.04 314(e)
-i-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE 1 DEFINITIONS
<S> <C>
SECTION 1.01. Definitions...................................................................... 1
SECTION 1.02. Other Definitions................................................................ 3
SECTION 1.03. Rules of Construction............................................................ 4
ARTICLE 2 THE SECURITIES
SECTION 2.01. Issuable in Series.............................................................. 5
SECTION 2.02. Execution and Authentication.................................................... 9
SECTION 2.03. Bond Agents..................................................................... 10
SECTION 2.04. Bearer Securities............................................................... 10
SECTION 2.05. Paying Agent to Hold Money in Trust............................................. 11
SECTION 2.06. Securityholder Lists............................................................ 12
SECTION 2.07. Transfer and Exchange........................................................... 12
SECTION 2.08. Replacement Securities.......................................................... 13
SECTION 2.09. Outstanding Securities.......................................................... 13
SECTION 2.10. Discounted Securities........................................................... 14
SECTION 2.11. Treasury Securities............................................................. 14
SECTION 2.12. Global Securities............................................................... 14
SECTION 2.13. Temporary Securities............................................................ 15
SECTION 2.14. Cancellation.................................................................... 15
SECTION 2.15. Defaulted Interest.............................................................. 15
SECTION 2.16. Persons Deemed Owners........................................................... 16
SECTION 2.17. Computation of Interest......................................................... 16
ARTICLE 3 REDEMPTION
SECTION 3.01. Notices to Trustee.............................................................. 16
SECTION 3.02. Selection of Securities to Be Redeemed.......................................... 17
SECTION 3.03. Notice of Redemption............................................................ 17
SECTION 3.04. Effect of Notice of Redemption.................................................. 18
SECTION 3.05. Payment of Redemption Price..................................................... 18
SECTION 3.06. Securities Redeemed in Part..................................................... 19
ARTICLE 4 COVENANTS
SECTION 4.01. Certain Definitions............................................................. 19
SECTION 4.02. Payment of Securities........................................................... 20
SECTION 4.03. Overdue Interest................................................................ 20
SECTION 4.04. No Lien Created, etc............................................................ 20
SECTION 4.05. Compliance Certificate.......................................................... 20
SECTION 4.06. SEC Reports..................................................................... 21
</TABLE>
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ARTICLE 5 SUCCESSORS
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SECTION 5.01. When Company May Merge, etc..................................................... 21
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default............................................................... 22
SECTION 6.02. Acceleration.................................................................... 24
SECTION 6.03. Other Remedies.................................................................. 24
SECTION 6.04. Waiver of Past Defaults......................................................... 24
SECTION 6.05. Control by Majority............................................................. 25
SECTION 6.06. Limitation on Suits............................................................. 25
SECTION 6.07. Collection Suit by Trustee...................................................... 26
SECTION 6.08. Priorities...................................................................... 26
ARTICLE 7 TRUSTEE
SECTION 7.01. Rights of Trustee............................................................... 26
SECTION 7.02. Individual Rights of Trustee.................................................... 27
SECTION 7.03. Trustee's Disclaimer............................................................ 28
SECTION 7.04. Notice of Defaults.............................................................. 28
SECTION 7.05. Reports by Trustee to Holders................................................... 28
SECTION 7.06. Compensation and Indemnity...................................................... 28
SECTION 7.07. Replacement of Trustee.......................................................... 29
SECTION 7.08. Successor Trustee by Merger, etc................................................ 31
SECTION 7.09. Trustee's Capital and Surplus................................................... 31
ARTICLE 8 DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance...................................................................... 31
SECTION 8.02. Conditions to Defeasance........................................................ 32
SECTION 8.03. Application of Trust Money...................................................... 32
SECTION 8.04. Repayment to Company............................................................ 33
ARTICLE 9 CONVERSION
SECTION 9.01. Conversion Privilege............................................................ 33
SECTION 9.02. Conversion Procedure............................................................ 34
SECTION 9.03. Taxes on Conversion............................................................. 35
SECTION 9.04. Company Determination Final..................................................... 35
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer..................................... 36
SECTION 9.06. Company to Provide Conversion Securities........................................ 36
SECTION 9.07. Cash Settlement Option.......................................................... 36
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock....................... 37
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below Market Price........ 39
</TABLE>
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<TABLE>
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SECTION 9.10. Adjustment for Other Distributions.............................................. 41
SECTION 9.11. Voluntary Adjustment............................................................ 42
SECTION 9.12. When Adjustment May Be Deferred................................................. 42
SECTION 9.13. When No Adjustment Required..................................................... 43
SECTION 9.14. Notice of Adjustment............................................................ 43
SECTION 9.15. Notice of Certain Transactions.................................................. 44
SECTION 9.16. Reorganization of the Company................................................... 44
ARTICLE 10 AMENDMENTS
SECTION 10.01. Without Consent of Holders...................................................... 45
SECTION 10.02. With Consent of Holders......................................................... 45
SECTION 10.03. Compliance with Trust Indenture Act............................................. 46
SECTION 10.04. Effect of Consents.............................................................. 46
SECTION 10.05. Notation on or Exchange of Securities........................................... 47
SECTION 10.06. Trustee Protected............................................................... 47
ARTICLE 11 MISCELLANEOUS
SECTION 11.01. Trust Indenture Act............................................................. 47
SECTION 11.02. Notices......................................................................... 48
SECTION 11.03. Certificate and Opinion as to Conditions
Precedent....................................................................... 49
SECTION 11.04. Statements Required in Certificate or
Opinion......................................................................... 49
SECTION 11.05. Rules by Company and Agents..................................................... 50
SECTION 11.06. Legal Holidays.................................................................. 50
SECTION 11.07. No Recourse Against Others...................................................... 50
SECTION 11.08. Duplicate Originals............................................................. 50
SECTION 11.09. Governing Law................................................................... 50
</TABLE>
SIGNATURES. 51
Exhibit A: Form of Registered Security
Exhibit B: Form of Bearer Security
Notes to Exhibits A and B
Exhibit C: Form of Assignment
Exhibit D: Form of Conversion Notice
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INDENTURE dated as of February 1, 1999 between SOUTHWESTERN PUBLIC
SERVICE COMPANY, a corporation organized and existing under the laws of the
State of New Mexico (hereinafter called the "Company") and THE CHASE MANHATTAN
BANK, a New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"AGENT" means any Registrar, Transfer Agent or Paying Agent.
"AUTHORIZED NEWSPAPER" means a newspaper that is:
(1) printed in the English language or in an official language of
the country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the
financial community of such place.
Whenever successive publications in an Authorized Newspaper are required, they
may be made on the same or different days that are not Legal Holidays and in the
same or different Authorized Newspapers.
"BEARER SECURITY" means a Security payable to bearer.
"BOARD" means the Board of Directors of the Company or any authorized
committee of the Board.
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"BOND RESOLUTION" means a resolution adopted by the Board or by a
committee of Officers or an Officer pursuant to Board delegation.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
"COMMON STOCK" means the common stock, per value $1.00 per share, of
the Company.
"COMPANY" means the party named as such above until a successor
replaces it and thereafter means the successor.
"CONVERSION RATE" means such number or amount of shares of Common
Stock or other equity or debt securities for which $1,000 aggregate principal
amount of Securities of any series is convertible, initially as stated in the
Bond Resolution authorizing the series and as adjusted pursuant to the terms of
this Indenture and the Bond Resolution.
"COUPON" means an interest coupon for a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time
would be, an Event of Default.
"DISCOUNTED SECURITY" means a Security where the amount of principal
due upon acceleration is less than the stated principal amount.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or coupon.
"INDENTURE" means this Indenture and any Bond Resolution as amended or
supplemented from time to time.
"OFFICER" means the Chairman, any Vice-Chairman, the President, any
Executive or Senior Vice President, any Vice-President, the Treasurer or any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of
the Company.
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"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"PRINCIPAL" of a debt security means the principal of the security
plus the premium, if and when applicable, on the security.
"REGISTERED SECURITY" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the debt securities issued under this Indenture.
"SERIES" means a series of Securities or the Securities of the series.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S) 77aaa-
77bbbb) as amended and as in effect at such time.
"TRADING DAY" means each day on which the securities exchange or
quotation system which is used to determine the Market Price is open for trading
or quotation.
"TRUSTEE" means the party named as such above until a successor
replaces it and thereafter means the successor.
"TRUST OFFICER" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"UNITED STATES" means the United States of America, its territories
and possessions and other areas subject to its jurisdiction.
SECTION 1.02. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"BANKRUPTCY LAW" 6.01
"CONDITIONAL REDEMPTION" 3.04
"CONVERSION AGENT" 2.03
"CONVERSION DATE" 9.02
"CONVERSION NOTICE" 9.02
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"CONVERSION RIGHT" 9.01
"CUSTODIAN" 6.01
"EVENT OF DEFAULT" 6.01
"LEGAL HOLIDAY" 11.06
"LIEN" 4.01
"MARKET PRICE" 9.07
"PAYING AGENT" 2.03
"PRICE PER SHARE" 9.09
"SUBSIDIARY" 4.01
"TRANSFER AGENT" 2.03
"TREASURY REGULATIONS" 2.04
"U.S. GOVERNMENT OBLIGATIONS" 8.02
"VOTING STOCK" 4.01
"YIELD TO MATURITY" 4.01
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in the United States;
(3) generally accepted accounting principles are those applicable
from time to time;
(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC
rule under the TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural
include the singular.
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ARTICLE 2
THE SECURITIES
SECTION 2.01. ISSUABLE IN SERIES.
The aggregate principal amount of Securities that may be issued under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series. Each series shall be created by a Bond Resolution or a
supplemental indenture that establishes the terms of the series, which may
include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating the
interest rate;
(4) the date from which interest will accrue;
(5) the record dates (or method of determining such dates) for
interest payable on Registered Securities;
(6) the dates (or method of determining such dates) when
principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the
Company including any sinking fund;
(11) the terms of any redemption at the option of Holders;
(12) the denominations in which Securities are issuable if other
than $1,000 (in the case of Registered Securities) or $5,000
(in the case of
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Bearer Securities) or any integral multiple thereof;
(13) whether Securities will be issuable as Registered Securities
or Bearer Securities;
(14) whether and upon what terms Registered Securities and Bearer
Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a
currency other than that in which Securities are denominated,
the manner for determining such payments;
(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner
for determining such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Security;
(23) any Events of Default or covenants in addition to or in lieu
of those set forth in this Indenture;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in
the form of Exhibit A or B;
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(26) any terms that may be required by or advisable under U.S.
laws;
(27) whether and upon what terms the Securities will be
convertible into or exchangeable for Common Stock of the
Company or other equity or debt securities, which may include
the terms provided in Article 9; and
(28) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
With respect to Securities of a series not to be issued at one time,
the indenture supplemental hereto or the Bond Resolution which establishes such
series, or the Officers' Certificate pursuant to such supplemental indenture or
Bond Resolution, as the case may be, may provide general terms or parameters for
Securities of such series and provide either that the specific terms of
Securities of such series, or any Security thereof, shall be specified in an
Officers' Certificate or that such terms shall be determined by the Company or
its agents in accordance with procedures specified in an Officers' Certificate.
Prior to the original issuance of Securities of any series the Trustee
shall have received and (subject to Section 7.01) shall be fully protected in
relying upon:
(1) the Bond Resolution or indenture supplemental hereto
establishing the form of the Securities of that series
pursuant to Section 2.01 and the terms of the Securities of
that series pursuant to Section 2.01:
(2) an Officers' Certificate pursuant to Sections 11.03 and
complying with Section 11.04;
(3) an Opinion of Counsel complying with Section 11.04 which
shall also state:
(A) that the form of such Securities has been established by
or pursuant to a Bond Resolution or by an indenture
supplemental
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hereto as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(B) that the terms of such Securities have been established
by or pursuant to a Bond Resolution or by an indenture
supplemental hereto as permitted by Section 2.01 in
conformity with the provisions of this Indenture;
(C) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors'
rights and to general equity principles; and
(D) such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such series:
(1) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken;
(2) if the Trustee in good faith by its Board of Directors,
executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith
determines that such actin would expose the Trustee to
personal liability to Holders of any outstanding series
of Securities; or
(3) if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or
otherwise
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in a manner which is not reasonably acceptable to the
Trustee.
With respect to Securities of a series not to be issued at one time,
the Trustee may conclusively rely, as to the authorization by the Company of any
such Securities, the forms and terms thereof, the validity thereof and the
compliance of the authentication and delivery thereof with the terms and
conditions of this Indenture, upon the Opinion or Opinions of Counsel and the
certificates and other documents delivered pursuant to this Article at or prior
to the time of the first authentication and delivery of Securities of such
series until any of such opinions, certificates or other documents have been
superseded or revoked or expired by their terms. In connection with the
authentication and delivery of Securities of a series not to be issued at one
time, the Trustee shall be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any applicable law or
any applicable rule, regulation or order of any governmental authority having
jurisdiction over the Company.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal shall be reproduced on the Securities. An
Officer shall sign any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no
longer holds that office at the time the Security is authenticated or delivered,
the Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Unless otherwise specified as contemplated by Section 2.01, each
Registered Security shall be dated the date of its authentication. Each Bearer
Security shall be dated the date of its original issuance or as provided in the
Bond Resolution.
Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreement or usage.
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In the event Securities are issued in electronic or other
uncertificated form, such Securities may be validly issued without the
signatures or seal contemplated by this Section 2.02.
SECTION 2.03. BOND AGENTS.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Transfer Agent"), where
Securities may be presented for payment ("Paying Agent") and where Securities
may be presented for conversion ("Conversion Agent"). Whenever the Company must
issue or deliver Securities pursuant to this Indenture, the Trustee shall
authenticate the Securities at the Company's written request. The Transfer
Agent shall keep a register of the Securities and of their transfer and
exchange.
The Company may appoint more than one Transfer Agent, Paying Agent or
Conversion Agent for a series. The Company shall notify the Trustee of the name
and address of any Agent not a party to this Indenture. If the Company does not
appoint or maintain a Transfer Agent, Paying Agent or Conversion Agent for a
series, the Trustee shall act as such.
SECTION 2.04. BEARER SECURITIES.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold and delivered only
outside the United States and will be delivered only upon
presentation of a certificate in a form prescribed by the
Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for
Registered Securities.
(3) All payments of principal and interest (including original
issue discount) on Bearer Securities will be made outside the
United States by a Paying Agent located outside the United
States unless the Company determines that:
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(A) such payments may not be made by such Paying Agent because the
payments are illegal or prevented by exchange controls as
described in Treasury Regulation (S) 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the
Company under this Section.
"TREASURY REGULATIONS" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent for a series other than
the Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money so held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent shall have no further liability
for the money.
If the Company or an Affiliate acts as Paying Agent for a series, it
shall segregate and hold as a separate trust fund all money held by it as Paying
Agent for the series.
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The Company may elect not to exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of
Holders of Bearer Securities who file a request to be included on such list. A
request will remain in effect for two years but successive requests may be made.
Whenever the Company or the Trustee is required to mail a notice to
all Holders of Registered Securities of a series, it also shall mail the notice
to Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. TRANSFER AND EXCHANGE.
Unless otherwise specified as contemplated by Section 2.01 where
Registered Securities of a series are presented to the Transfer Agent with a
request to register transfer or to exchange them for an equal principal amount
of Registered Securities of other denominations of the series, the Transfer
Agent shall register the transfer or make the exchange if its requirements for
such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to
cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for
their exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities
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may be exchanged for Bearer Securities as provided in the Securities or the Bond
Resolution if the requirements of the Transfer Agent for such transactions are
met and if Section 2.04 permits the exchange.
SECTION 2.08. REPLACEMENT SECURITIES.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or
taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any
taxes for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to
those, if any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of
the Company.
SECTION 2.09. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.02, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
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SECTION 2.10. DISCOUNTED SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Security shall be the amount of principal that would be
due as of the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
SECTION 2.12. GLOBAL SECURITIES.
If the Bond Resolution so provides, the Company may issue some or all
of the Securities of a series in temporary or permanent global form. A global
Security may be in registered form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that amount of
Securities of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's written request, the Trustee shall
endorse a global Security to reflect the amount of any increase or decrease in
the Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global Security only as
a whole to its nominee or to a successor depository.
The Bond Resolution may establish, among other things, the manner of
paying principal and interest on a global Security and whether and upon what
terms a beneficial owner of an interest in a global Security may exchange such
interest for definitive Securities.
The Company, any Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership
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interests or for any transactions between the depository and beneficial owners.
SECTION 2.13. TEMPORARY SECURITIES.
Until definitive Securities of a series are ready for delivery, the
Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Temporary
Securities may be in global form. Temporary Bearer Securities may have one or
more coupons or no coupons. Without unreasonable delay, the Company shall
deliver definitive Securities in exchange for temporary Securities.
SECTION 2.14. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Trustee shall cancel all Securities or coupons
surrendered for payment, registration of transfer, exchange or cancellation as
follows: the Trustee will cancel all Registered Securities and matured coupons.
The Trustee also will cancel all Bearer Securities and unmatured coupons unless
the Company requests the Trustee to hold the same for redelivery. Any Bearer
Securities so held shall be considered delivered for cancellation under Section
2.09. The Trustee shall destroy cancelled Securities and coupons unless the
Company otherwise directs.
Unless the Bond Resolution otherwise provides, the Company may not
issue new Securities to replace Securities that the Company has paid or that the
Company has delivered to the Trustee for cancellation.
SECTION 2.15. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on Registered
Securities of a series, it need not pay the defaulted interest to Holders on any
regular record date established with respect to Registered Securities of such
series. The Company may fix a special record date for determining Holders
entitled to receive defaulted interest or the Company may pay defaulted interest
in any other lawful manner.
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SECTION 2.16. PERSONS DEEMED OWNERS.
The Company, any Affiliate, the Trustee and any Agent may treat the
person in whose name any Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 2.07 and 2.15) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee, any Affiliate nor any Agent shall be
affected by notice to the contrary.
SECTION 2.17. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of three hundred sixty (360) day year consisting of twelve
(12) thirty (30) day months and, with respect to any period less than a full
calendar month, on the basis of the actual number of days elapsed during such
period.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Bond Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify
the Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent it is
permitted a credit by the terms of the Securities and it notifies the Trustee of
the amount of the credit and the basis for it. If the reduction is based on a
credit for acquired or redeemed Securities that the Company has
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not previously delivered to the Trustee for cancellation, the Company shall
deliver the Securities at the same time as the notice.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select the Securities to be redeemed by a method the Trustee
considers fair and appropriate. The Trustee shall make the selection from
Securities of the series outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days before a redemption date, the Company shall mail a
notice of redemption by first-class mail to each Holder of Registered Securities
whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a
notice of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all
coupons, if any, maturing after the redemption date, must be
surrendered to the Paying Agent to collect the redemption
price;
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(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(6) whether the redemption by the Company is mandatory or
optional; and
(7) whether the redemption is conditional as provided in Section
3.04, the terms of the condition, and that, if the condition
is not satisfied or is not waived by the Company, the
Securities will not be redeemed and such a failure to redeem
will not constitute an Event of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Except as provided below, once notice of redemption is given,
Securities called for redemption become due and payable on the redemption date
at the redemption price stated in the notice.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as described
in such notice ("Conditional Redemption") and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the redemption
have occurred before such date or have been waived by the Company.
SECTION 3.05. PAYMENT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder on
the redemption date the redemption price and accrued interest to such date,
except that:
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(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered
Securities if the redemption date occurs on an interest
payment date; and
(2) the Company will pay any such interest to Holders of coupons
that mature on or before the redemption date upon surrender of
such coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are
void absent a payment default on that date. Nevertheless, if a Holder
surrenders for redemption a Bearer Security missing any such coupons, the
Company may deduct the face amount of such coupons from the redemption price.
If thereafter the Holder surrenders to the Paying Agent the missing coupons, the
Company will return the amount so deducted. The Company also may waive
surrender of the missing coupons if it receives an indemnity bond satisfactory
to the Company.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. CERTAIN DEFINITIONS.
"LIEN" means any mortgage, pledge, security interest or lien.
"SUBSIDIARY" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"VOTING STOCK" means capital stock having voting power under ordinary
circumstances to elect directors.
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"YIELD TO MATURITY" means the yield to maturity on a Security at the
time of its issuance or at the most recent determination of interest on the
Security.
SECTION 4.02. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds on that date money
sufficient to pay all principal and interest then due on the series.
SECTION 4.03. OVERDUE INTEREST.
Unless the Bond Resolution otherwise provides, the Company shall pay
interest on overdue principal of a Security of a series at the rate (or Yield to
Maturity in the case of a Discounted Security) borne by the series; it shall pay
interest on overdue installments of interest at the same rate or Yield to
Maturity to the extent lawful.
SECTION 4.04. NO LIEN CREATED, ETC.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.05. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, a brief certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company, as to the signer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture (determined without
regard to any period of grace or requirement of notice provided herein).
Any other obligor on the Securities shall also deliver to the Trustee
such a certificate as to its compliance with this Indenture within 120 days
after the end of each of its fiscal years.
The certificates need not comply with Section 11.04.
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SECTION 4.06. SEC REPORTS.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents, and other reports (or such portions of the
foregoing as the SEC may prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the above
items which it is required to file with the SEC pursuant to those sections.
ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
Unless the Bond Resolution establishing a Series otherwise provides,
the Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, any person unless:
(1) the person is organized under the laws of the United States or
a State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the
Securities and any coupons;
(3) all required approvals of any regulatory body having
jurisdiction over the transaction shall have been obtained;
(4) immediately after the transaction no Default exists; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for
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relating to such transaction have been complied with.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any coupons
shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless the Bond Resolution otherwise provides, an "EVENT OF DEFAULT"
on a series occurs if:
(1) the Company defaults in any payment of interest on any
Securities of the series when the same becomes due and payable
and the Default continues for a period of 60 days;
(2) the Company defaults in the payment of the principal of any
Securities of the series when the same becomes due and payable
at maturity or upon redemption, acceleration or otherwise;
(3) the Company defaults in the payment or satisfaction of any
sinking fund obligation with respect to any Securities of a
Series as required by the Bond Resolution establishing such
series and the Default continues for a period of 60 days;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues
for 90 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
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(C) consents to the appointment of a Custodian for it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
(D) and the order or decree remains unstayed and in effect
for 60 days; or
(7) there occurs any other Event of Default provided for in the
series.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the series notify
the Company of the Default and the Company does not cure the Default within the
time specified after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." If Holders notify the Company of a Default, they shall notify the
Trustee at the same time.
The failure to redeem any Security subject to a Conditional Redemption
is not an Event of Default if any event on which such redemption is so
conditioned does not occur and is not waived before the redemption date.
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SECTION 6.02. ACCELERATION.
If an Event of Default occurs and is continuing on a series, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the series by notice to the Company and the Trustee, may declare the
principal of and accrued interest on all the Securities of the series to be due
and payable immediately. Discounted Securities may provide that the amount of
principal due upon acceleration is less than the stated principal amount.
The Holders of a majority in principal amount of the series by notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default on the series have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing on a series, the
Trustee may pursue any available remedy to collect principal or interest then
due on the series, to enforce the performance of any provision applicable to the
series, or otherwise to protect the rights of the Trustee and Holders of the
series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or coupons or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Unless the Bond Resolution otherwise provides, the Holders of a
majority in principal amount of a series by notice to the
Trustee may waive an existing Default on the series and its
consequences except:
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(1) a Default in the payment of the principal of or interest on
the series, or
(2) a Default in respect of a provision that under Section 10.02
cannot be amended without the consent of each Securityholder
affected.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of a series may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or of exercising any trust or power conferred on the Trustee,
with respect to the series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or would expose the Trustee
to personal liability or be unduly prejudicial to holders not joining therein,
and the Trustee may take any other action deemed proper by the Trustee which is
not provided for in such notice.
SECTION 6.06. LIMITATION ON SUITS.
A Securityholder of a series may pursue a remedy with respect to the
series only if:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default on the series;
(2) the Holders of at least 25% in principal amount of the series
make a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the series do not give the Trustee a
direction inconsistent with such request.
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A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest, principal or sinking
fund specified in Section 6.01(1), (2) or (3) occurs and is continuing on a
series, the Trustee may recover judgment in it own name and as trustee of an
express trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. PRIORITIES.
If the Trustee collects any money for a series pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and
unpaid for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable for
principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to Securityholders.
ARTICLE 7
TRUSTEE
SECTION 7.01. RIGHTS OF TRUSTEE.
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
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(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Certificate or
Opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(5) The Trustee may refuse to perform any duty or exercise any
right or power which it reasonably believes may expose it to
any loss, liability or expense unless it receives indemnity
satisfactory to it against such loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be
segregated FROM other funds except to the extent required by
law.
(7) The Trustee shall have no duty with respect to a Default
unless it has actual knowledge of the Default.
(8) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be
authorized and within its powers.
(9) Any Agent shall have the same rights and be protected to the
same extent as if it were Trustee.
SECTION 7.02. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or coupons and may otherwise deal with the
Company or an Affiliate with the
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same rights it would have if it were not Trustee. Any Agent may do the same with
like rights.
SECTION 7.03. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities or any coupons; it shall not be accountable for
the Company's use of the proceeds from the Securities; it shall not be
responsible for any statement in the Securities or any coupons; it shall not be
responsible for any overissue; it shall not be responsible for determining
whether the form and terms of any Securities or coupons were established in
conformity with this Indenture; and it shall not be responsible for determining
whether any Securities were issued in accordance with this Indenture.
SECTION 7.04. NOTICE OF DEFAULTS.
If a Default occurs and is continuing on a series and if it is known
to the Trustee, the Trustee shall mail a notice of the Default within 90 days
after it occurs to Holders of Registered Securities of the series. Except in
the case of a Default in payment on a series, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Holders of the
series. The Trustee shall withhold notice of a Default described in Section
6.01(4) until at least 90 days after it occurs.
SECTION 7.05. REPORTS BY TRUSTEE TO HOLDERS.
Any report required by TIA (S) 313(a) to be mailed to Securityholders
shall be mailed by the Trustee on or before October 15 of each year.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on
a stock exchange.
SECTION 7.06. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of
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a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities and any coupons on all money
or property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of the Section shall survive any termination or
discharge of this Indenture (including without limitation any termination under
any Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee.
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The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA (S) 310(a) or (S) 310(b)
or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the
Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(5) or (6)
occurs with respect to the Trustee.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with TIA (S) 310(a) or (S) 310(b) or
with Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Registered Securities. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.06.
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SECTION 7.08. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.09. TRUSTEE'S CAPITAL AND SURPLUS.
The Trustee at all times shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published report of
condition.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DEFEASANCE.
Securities of a series may be defeased in accordance with their terms
and, unless the Bond Resolution otherwise provides, in accordance with this
Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of the series and any related
coupons ("legal defeasance option"). The Company at any time may terminate as
to a series its obligations, if any, under any restrictive covenants which may
be applicable to a particular series ("covenant defeasance option"). However,
in the case of the legal defeasance option, the Company's obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive
until the Securities of the series are no longer outstanding; thereafter the
Company's obligations in Section 7.06 shall survive.
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company exercises
its legal defeasance option, a series may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option, a series
may not be accelerated by reference to any restrictive covenants which may be
applicable to a particular series so defeased under the terms of the series.
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The Trustee upon request shall acknowledge in writing the discharge of
those obligations that the Company terminates.
SECTION 8.02. CONDITIONS TO DEFEASANCE.
The Company may exercise as to a series its legal defeasance option or
its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants
("verification report") expressing their opinion that the
payments of principal and interest when due on the deposited U.S.
Government Obligations without reinvestment plus any deposited
money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest
when due on all the Securities of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA (S) 310(a) or (S) 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion of Counsel to
the effect that Holders of the series will not recognize income,
gain or loss for Federal income tax purposes as a result of the
defeasance; and
(7) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(5) or (6) occurs that
is continuing at the end of the period.
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Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of (i) the
United States or (ii) an agency or instrumentality of the United States, the
payment of which is unconditionally guaranteed by the United States, which, in
either case, have the full faith and credit of the United States pledged for
payment and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
SECTION 8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities held by them at any time.
The Trustee may request a verification report.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Securityholders entitled
to the money must look to the Company for payment as unsecured general
creditors unless an abandoned property law designates another person.
ARTICLE 9
CONVERSION
SECTION 9.01. CONVERSION PRIVILEGE.
If the Bond Resolution establishing the terms of a series of
securities so provides, Securities of any series may
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be convertible into or for Common Stock or other equity or debt securities (a
"Conversion Right"). The Bond Resolution may establish, among other things, the
Conversion Rate, provisions for adjustments to the Conversion Rate and
limitations upon exercise of the Conversion Right.
Unless the Bond Resolution otherwise provides, a Holder may convert a
portion of a Security if the portion is $1,000 or an integral multiples thereof.
Provisions of this Indenture that apply to the conversion of the aggregate
principal amount of a Security also apply to conversion of a portion of it.
SECTION 9.02. CONVERSION PROCEDURE.
To convert a Security a Holder must satisfy all requirements in the
Securities or the Bond Resolution and (i) complete and manually sign the
conversion notice (the "Conversion Notice") provided for in the Bond Resolution
or the Security (or complete and manually sign a facsimile thereof) and deliver
such notice to the Conversion Agent or any other office or agency maintained for
such purpose, (ii) surrender the Security to the Conversion Agent or at such
other office or agency by physical delivery, (iii) if required, furnish
appropriate endorsements and transfer documents, and (iv) if required, pay all
transfer or similar taxes. The date on which such notice shall have been
received by and the Security shall have been so surrendered to the Conversion
Agent is the "Conversion Date." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities
not later than the fifth business day following the Conversion Date in respect
of the cash portion elected to be delivered in lieu of the securities into which
the Security is convertible and not later than the seventh business day
following the Conversion Date in respect of the portion to be settled in such
securities.
If any Security is converted between the record date for the payment
of interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied
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by any payment, and the interest on the principal amount of the Security being
converted will be paid on such interest payment date to the registered holder of
such Security on the immediately preceding record date. Subject to the aforesaid
right of the registered holder to receive interest, no payment or adjustment
will be made on conversion for interest accrued on the converted Security or for
interest, dividends or other distributions payable on any security issued on
conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
Upon surrender of a Security that is converted in part the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unconverted portion of the Security surrendered; except that if a Global
Security is so surrendered the Trustee shall authenticate and deliver to the
Depositary a new Global Security in a denomination equal to and in exchange for
the unconverted portion of the principal of the Global Security so surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
SECTION 9.03. TAXES ON CONVERSION.
If a Holder of a Security exercises a Conversion Right, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of the securities into which the Security is convertible upon the
conversion. However, the Holder shall pay any such tax which is due because
securities or other property are issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax or other withholding required by
law or regulations.
SECTION 9.04. COMPANY DETERMINATION FINAL.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Bond Resolution is
conclusive, absent manifest error.
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SECTION 9.05. TRUSTEE'S AND CONVERSION AGENT'S DISCLAIMER.
The Trustee (and each Conversion Agent other than the Company) has no
duty to determine when or if an adjustment under this Article 9 or any Bond
Resolution should be made, how it should be made or calculated or what it should
be. The Trustee (and each Conversion Agent other than the Company) makes no
representation as to the validity or value of any securities issued upon
conversion of Securities. The Trustee (and each Conversion Agent other than the
Company) shall not be responsible for the Company's failure to comply with this
Article 9 or any provision of a Bond Resolution relating to a Conversion Right.
SECTION 9.06. COMPANY TO PROVIDE CONVERSION SECURITIES.
The Company shall reserve out of its authorized but unissued Common
Stock or its Common Stock held in treasury sufficient shares to permit the
conversion of all of the Securities convertible into Common Stock. The Company
shall arrange and make available for issuance upon conversion the full amount of
any other securities into which the Securities are convertible to permit such
conversion of the Securities.
All shares of Common Stock or other equity securities of any person
which may be issued upon conversion of the Securities shall be validly issued,
fully paid and non-assessable.
The Company will comply with all securities laws regulating the offer
and delivery of securities upon conversion of Securities.
SECTION 9.07. CASH SETTLEMENT OPTION.
If the Bond Resolution so provides, the Company may elect to satisfy,
in whole or in part, a Conversion Right of Securities convertible into Common
Stock or other securities of any person by the delivery of cash. The amount of
cash to be delivered shall be equal to the Market Price on the last Trading Day
preceding the applicable Conversion Date of a share of Common Stock or other
securities of any person into which the Securities are convertible multiplied by
the number of shares of Common Stock or the number of shares or principal amount
of other securities into which the Securities are convertible, respectively, in
respect of which the Company
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<PAGE>
elects to deliver cash. If the Company elects to satisfy, in whole or in part, a
Conversion Right by the delivery of shares of Common Stock or other securities,
no fractional shares or portion of other securities will be delivered. Instead,
the Company will pay cash based on the Market Price for such fractional share of
Common Stock or portion of other securities.
The "Market Price" of the Common Stock into which Securities or other
equity securities into which the Securities are convertible may be converted
pursuant to a Bond Resolution or this Article 9 on any Trading Day means the
weighted average per share sale price for all sales of the Common Stock or other
equity securities on such Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not reported, the
average of the high and low sale prices, or if no sales are reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices), as reported in the composite
transactions for the New York Stock Exchange, or if the Common Stock or other
equity securities into which the Securities are convertible is not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or other equity securities into which the Securities are
convertible is listed or admitted to trading or, if the Common Stock or other
equity securities into which the Securities are convertible is not listed or
admitted to trading on a United States national or regional securities exchange,
as reported by NASDAQ or by the National Quotation Bureau Incorporated or if not
so reported as determined in the manner set forth in the appropriate Bond
Resolution. In the absence of such quotations, the Company shall be entitled to
determine the Market Price on the basis of such quotations as it considers
appropriate.
The "Market Price" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Bond Resolution.
SECTION 9.08. ADJUSTMENT IN CONVERSION RATE FOR CHANGE IN CAPITAL STOCK.
If the Securities are convertible into Common Stock and the Company:
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(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of
its Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If the Security into which the Securities are convertible are other
than Common Stock of the Company, the conversion rate shall be subject to
adjustment as set forth in the applicable Bond Resolution.
If after an adjustment a Holder of a Security may, upon conversion,
receive shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall determine allocation of
the adjusted Conversion Rate between or among the classes of Capital Stock or
other securities. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock or other securities shall
thereafter be subject to adjustment on terms comparable to those applicable to
Common Stock in this Article or in such Bond Resolution.
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<PAGE>
SECTION 9.09. ADJUSTMENT IN CONVERSION RATE FOR COMMON STOCK ISSUED BELOW
MARKET PRICE.
If the Securities are convertible with Common Stock, and the Company
issues to all holders of Common Stock rights, options or warrants to subscribe
for or purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC x O + N__
-------
O + R
---
M
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior to such
issuance (which number shall include shares owned or held by or for the
account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common Stock, is
the maximum number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the maximum number of shares of Common Stock
initially issuable upon the conversion or exchange of the convertible or
exchangeable securities issuable upon the exercise of such rights, options
or warrants.
R = the proceeds received or receivable by the Company, which (i) in the case
of rights, options or warrants to subscribe for or purchase shares of
Common Stock or of securities convertible into or exchangeable for shares
of
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<PAGE>
Common Stock, is the aggregate amount received or receivable by the
Company in consideration for the sale and issuance of such rights,
options, warrants or convertible or exchangeable securities, plus the
minimum aggregate amount of additional consideration, other than the
convertible or exchangeable securities, payable to the Company upon
exercise, conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the aggregate amount received or receivable by
the Company in consideration for the sale and issuance of such rights,
options or warrants, plus the minimum aggregate consideration payable to
the Company upon the exercise thereof, plus the minimum aggregate amount
of additional consideration, other than the convertible or exchangeable
securities, payable upon the conversion or exchange of the convertible or
exchangeable securities; provided, that in each case the proceeds received
or receivable by the Company shall be deemed to be the amount of gross
cash proceeds without deducting therefrom any compensation paid or
discount allowed in the sale, underwriting or purchase thereof by
underwriters or dealers or others performing similar services or any
expenses incurred in connection therewith.
M = the current Market Price per share of Common Stock on the date of issue of
the rights, options or warrants to subscribe for or purchase shares of
Common Stock or the securities convertible into or exchangeable for shares
of Common Stock or the rights, options or warrants to subscribe for or
purchase convertible or exchangeable securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R
---
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible or
exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in
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<PAGE>
part, of property other than cash the amount of such consideration shall be
determined in good faith by the Board of Directors whose determination shall be
conclusive and evidenced by a resolution of the Board of Directors filed with
the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities with
respect to its Common Stock are issued, and shall become effective immediately
after the date of issue of such shares, rights, options, warrants or convertible
or exchangeable securities.
To the extent that such rights, options or warrants to acquire Common
Stock expire unexercised or to the extent any convertible or exchangeable
securities with respect to its Common Stock are redeemed by the Company or
otherwise cease to be convertible or exchangeable into shares of Common Stock,
the Conversion Rate shall be readjusted to the Conversion Rate which would then
be in effect had the adjustment made upon the date of issuance of such rights,
options, warrants or convertible or exchangeable securities been made upon the
basis of the issuance of rights, options or warrants to subscribe for or
purchase only the number of shares of Common Stock as to which such rights,
options or warrants were actually exercised and the number of shares of Common
Stock that were actually issued upon the conversion or exchange of the
convertible or exchangeable securities.
If the Securities are convertible into securities other than the
Common Stock, any adjustment in the Conversion Rate required for the issuance or
sale of the securities into which the Securities are convertible shall be made
as set forth in the Bond Resolution.
SECTION 9.10. ADJUSTMENT FOR OTHER DISTRIBUTIONS.
If the Securities are initially convertible into Common Stock and the
Company distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC x (O x M)
-----------
(O x M) - F
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<PAGE>
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by or for
the account of the Company).
M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities, rights
or warrants distributed. The Board of Directors of the Company shall
determine the fair market value.
The adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
If the securities into which the Securities are convertible are other
than Common Stock, any adjustments for such other distribution shall be made as
set forth in the Bond Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. VOLUNTARY ADJUSTMENT.
The Company at any time may increase the Conversion Rate, temporarily
or otherwise, by any amount but in no event shall such Conversion Rate result in
the issuance of Capital Stock at a price less than the par value of such Capital
Stock at the time such increase is made.
SECTION 9.12. WHEN ADJUSTMENT MAY BE DEFERRED.
No adjustment in the Conversion Rate need be made unless the
adjustment would require a change of at least 1% in the Conversion Rate. Any
adjustments that are not made due to the immediately preceding sentence shall be
carried forward and
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<PAGE>
taken into account in any subsequent adjustment; provided, that any adjustment
--------
carried forward shall be deferred not in excess of three years, whereupon any
adjustment to the Conversion Rate will be effected.
All calculations under this Article 9 shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. WHEN NO ADJUSTMENT REQUIRED.
Except as set forth in Section 9.09, no adjustment in the Conversion
Rate shall be made because the Company issues, in exchange for cash, property or
services, shares of Common Stock, or any securities convertible into shares of
Common Stock, or securities carrying the right to purchase shares of Common
Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to
purchase or the sale of Common Stock pursuant to a Company plan providing for
reinvestment of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the
par value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section
9.08, 9.09 or 9.10 if Securityholders are to participate in the transaction on a
basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
SECTION 9.14. NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders of Securities affected a notice of the adjustment. The Company
shall file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
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<PAGE>
SECTION 9.15. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate,
(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company
or of the issuer of any other security into which the Securities are
convertible,
the Company shall mail to the Trustee and to Holders of Securities of any
affected series a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease, liquidation or
dissolution. The Company shall mail the notice at least 15 days before such
date. Failure to mail the notice or any defect in it shall not affect the
validity of the transaction.
SECTION 9.16. REORGANIZATION OF THE COMPANY.
If the Company is a party to a transaction subject to Section 5.01,
the successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor company shall mail to Holders of Securities
of any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
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ARTICLE 10
AMENDMENTS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Bond Resolution, and the Trustee may
amend this Indenture, the Securities or any coupons without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall
not apply to a series not previously issued;
(4) create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect
the rights of any Securityholder.
SECTION 10.02. WITH CONSENT OF HOLDERS.
Unless the Bond Resolution otherwise provides, the Company and the
Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class.
However, without the consent of each Securityholder of each series affected, an
amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
(3) change the fixed maturity of any Security;
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<PAGE>
(4) reduce the principal of any non-Discounted Security or reduce
the amount of principal of any Discounted Security that would
be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a
Security is payable;
(6) make any change that materially adversely affects the right to
convert any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase
the amount of Securities whose Holders must consent to an
amendment or waiver or to provide that other provisions of
this Indenture cannot be amended or waived without the consent
of each Securityholder affected thereby.
An amendment of a provision included solely for the benefit of one or
more series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed
amendment or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment pursuant to Section 10.01 or 10.02 shall be set forth
in a supplemental indenture that complies with the TIA as then in effect.
If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect.
SECTION 10.04. EFFECT OF CONSENTS.
An amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as
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<PAGE>
the consenting Holder's Security. Any Holder or subsequent Holder may revoke the
consent as to his Security if the Trustee receives notice of the revocation
before the amendment or waiver becomes effective.
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 10.06. TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that adversely
affects its rights. The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of any amendment or supplement or
waiver authorized pursuant to this Article is authorized or permitted by this
Indenture, and that such amendment or supplement or waiver constitutes the
legal, valid and binding obligation of the Company.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be
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included in this Indenture by the TIA, the required provision shall control.
SECTION 11.02. NOTICES
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company: Southwestern Public Service Company
Tyler at Sixth
Amarillo, Texas 79101
Fax: 806-378-2995
Attention: Secretary
Trustee: The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Fax: 212-946-8159
Attention: Corporate Trust Department
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address
shown on the register kept by the Transfer Agent or on the list referred to in
Section 2.06. Failure to mail a notice to a Securityholder or any defect in a
notice mailed to a Securityholder shall not affect the sufficiency of the notice
mailed to other Securityholders or the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice to Securityholders, it shall mail a copy
to the Trustee and each Agent at the same time.
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<PAGE>
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure to
publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
SECTION 11.03. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall if so requested furnish to
the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 11.05. RULES BY COMPANY AND AGENTS.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 11.06. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions or trust companies are not required to be open. If a payment date
is a Legal Holiday at a place of payment, unless the Bond Resolution
establishing a series otherwise provides with respect to Securities of the
series, payment may be made at that place on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.07. NO RECOURSE AGAINST OTHERS.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.09. GOVERNING LAW.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons, unless federal law governs.
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SIGNATURES
Dated: February 1, 1999 SOUTHWESTERN PUBLIC SERVICE
COMPANY
By /s/ Brian P. Jackson
------------------------------
Name: Brian P. Jackson
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
(SEAL)
Attest:
/s/ Cathy J. Hart
- ---------------------------
Name: Cathy J. Hart
Title: Assistant Secretary
Dated: February 1, 1999 THE CHASE MANHATTAN BANK
By /s/ W.B. Dodge
------------------------------
Name: W.B. Dodge
Title: Vice President
(SEAL)
Attest:
/s/ William G. Keenan
- ---------------------------
Name: William G. Keenan
Title: Trust Officer
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EXHIBIT A
A Form of Registered Security
No. $
SOUTHWESTERN PUBLIC SERVICE COMPANY
[Title of Security]
Southwestern Public Service Company
promises to pay to
Or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
[ ] SOUTHWESTERN PUBLIC SERVICE
Transfer Agent and Paying Agent COMPANY
(SEAL) by:____________________________
Authenticated: Attest:
[Name of Trustee]
by:____________________________
Trustee, by Vice-President
Authorized Signature
A-1
<PAGE>
SOUTHWESTERN PUBLIC SERVICE COMPANY
[Title of Security]
1. INTEREST./1/
Southwestern Public Service Company ("Company"), a corporation
organized and existing under the laws of the State of New Mexico,
promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest
on and of each year commencing , 19__.
Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
, 19__. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT./2/
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered
address.
3. BOND AGENTS.
Initially,
Attention: , will act as Paying Agent and Transfer Agent. The Company
may change any Paying Agent or Transfer Agent without notice or
provide for more than one such agent. The Company or any Affiliate may
act in any such capacity. In certain circumstances, the Company may
change the Trustee.
A-2
<PAGE>
4. INDENTURE.
The Company issued the securities of this series ("Securities") under
an Indenture dated as of February 1, 1999 ("Indenture") between the
Company and The Chase Manhattan Bank ("Trustee"). The terms of the
Securities include those stated in the Indenture and in the Bond
Resolution creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (15 U.S. Code
(S)(S) 77aaa-77bbbb). Securityholders are referred to the Indenture,
the Bond Resolution and the Act for a statement of such terms.
5. OPTIONAL REDEMPTION./3/
On or after , the Company may redeem all the Securities
at any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal amount), plus
accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. MANDATORY REDEMPTION./4/
The Company will redeem $ principal amount of Securities on
and on each thereafter through at a
redemption price of 100% of principal amount, plus accrued interest to
the redemption date./5/ The Company may reduce the principal amount
of Securities to be redeemed pursuant to this paragraph by subtracting
100% of the principal amount (excluding premium) of any Securities (i)
that the Company has acquired or that the Company has redeemed other
than pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
A-3
<PAGE>
7. ADDITIONAL OPTIONAL REDEMPTION./6/
In addition to redemptions pursuant to the above paragraph(s), the
Company may redeem not more than $ principal
amount of Securities on and on each thereafter
through at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. NOTICE OF REDEMPTION./7/
Notice of redemption will be mailed at least 30 days before the
redemption date to each holder of Securities to be redeemed at his
registered address.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. CONVERSION./8/
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination thereof, at the Company's option, at any
time before the close of business on ___________, or, if the Security
is called for redemption, the Holder may convert it at any time before
the close of business on the redemption date. The initial Conversion
Rate is ____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as provided
in Article 9 of the Indenture.9 The Company will deliver a check in
lieu of any fractional share. On conversion no payment or adjustment
for interest accrued on the Securities will be made nor for dividends
on the Common Stock issued on conversion. If any Security is
converted between the record date for the payment of interest and the
next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding
interest payment date on the principal amount so converted (unless
such Security shall have been called for redemption,
A-4
<PAGE>
in which case no such payment shall be required). A Security converted
on an interest payment date need not be accompanied by any payment,
and the interest on the principal amount of the Security being
converted will be paid on such interest payment date to the registered
holder of such Security on the immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations
of $1,00010 and whole multiples of $1,000. The transfer of Securities
may be registered and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it
need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
11. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its owner for
all purposes.
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment./11/
Subject to certain exceptions, a default on a series
A-5
<PAGE>
may be waived with the consent of the holders of a majority in
principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. RESTRICTIVE COVENANTS./12/
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit
other unsecured debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./13/
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the United States of
America or certificates representing an ownership interest in such
Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/14/ includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after notice
to it in the performance of any of its other agreements applicable to
the Securities; certain events of bankruptcy or insolvency; and any
other Event of Default provided for in the series.
A-6
<PAGE>
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the Securities may
declare the principal/15/ of all the Securities to be due and payable
immediately. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture
or the Securities. Subject to certain limitations, holders of a
majority in principal amount of the Securities may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish annual
compliance certificates to the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
The Chase Manhattan Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual
signature of the Trustee.
A-7
<PAGE>
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE BOND RESOLUTION,
WHICH CONTAINS THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY
BE MADE TO: SOUTHWESTERN PUBLIC SERVICE COMPANY, TYLER AT SIXTH,
AMARILLO, TEXAS 79101, ATTENTION: CORPORATE SECRETARY.
A-8
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. $
SOUTHWESTERN PUBLIC SERVICE COMPANY
[Title of Security]
Southwestern Public
Service Company promises
to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Dated:
[ ] SOUTHWESTERN PUBLIC SERVICE
Transfer Agent COMPANY
(SEAL)
Authenticated: by: _______________________
[Name of Trustee] Attest
Trustee, by by: _______________________
Authorized Signature Vice-President
B-1
<PAGE>
1. INTEREST./1/
Southwestern Public Service Company ("Company"), a corporation
organized and existing under the laws of the State of New Mexico,
promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest
on and of each year commencing , 19__.
Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
, 19__. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT./2/
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the
record date for the next interest payment date, except as otherwise
provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such
money. It may mail an interest check to a holder's registered
address.
3. BOND AGENTS.
Initially, Attention: , will act
as Paying Agent and Transfer Agent. The Company may change any Paying
Agent or Transfer Agent without notice or provide for more than one
such agent. The Company or any Affiliate may act in any such
capacity. In certain circumstances, the Company may change the
Trustee.
4. INDENTURE.
The Company issued the securities of this series ("Securities") under
an Indenture dated as of February 1, 1999 ("Indenture") between the
Company and The Chase Manhattan Bank ("Trustee"). The terms of the
Securities include those stated in the Indenture and in the Bond
Resolution creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (15 U.S. Code
(S)(S) 77aaa-77bbbb). Securityholders are referred to the Indenture,
the
B-2
<PAGE>
Bond Resolution and the Act for a statement of such terms.
5. OPTIONAL REDEMPTION./3/
On or after , the Company may redeem all the Securities
at any time or some of them from time to time at the following
redemption prices (expressed in percentages of principal amount), plus
accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. MANDATORY REDEMPTION./4/
The Company will redeem $ principal amount of Securities on
and on each thereafter through at a
redemption price of 100% of principal amount, plus accrued interest to
the redemption date./5/ The Company may reduce the principal amount
of Securities to be redeemed pursuant to this paragraph by subtracting
100% of the principal amount (excluding premium) of any Securities (i)
that the Company has acquired or that the Company has redeemed other
than pursuant to this paragraph and (ii) that the Company has
delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION./6/
In addition to redemptions pursuant $ principal to the
above paragraph(s), the amount of Securities on
and on each thereafter through at a redemption
price of 100% Company may redeem not more than of principal amount,
plus accrued interest to the redemption date.
B-3
<PAGE>
8. NOTICE OF REDEMPTION./7/
Notice of redemption will be published once in an Authorized Newspaper
in the city of New York and if the Securities are listed on any stock
exchange located outside the United States and such stock exchange so
requires, in any other required city outside the United States at
least 30 days before the redemption date. Notice of redemption also
will be mailed to holders who have filed their names and addresses
with the Transfer Agent within the two preceding years. A holder of
Securities may miss important notices if he fails to maintain his name
and address with the Transfer Agent.
A notice of redemption may provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
9. CONVERSION./8/
A Holder of a Security may convert it into Common Stock of the Company
or cash, or a combination thereof, at the Company's option, at any
time before the close of business on ___________, or, if the Security
is called for redemption, the Holder may convert it at any time before
the close of business on the redemption date. The initial Conversion
Rate is ____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as provided
in Article 9 of the Indenture.9 The Company will deliver a check in
lieu of any fractional share. On conversion no payment or adjustment
for interest accrued on the Securities will be made nor for dividends
on the Common Stock issued on conversion. If any Security is
converted between the record date for the payment of interest and the
next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding
interest payment date on the principal amount so converted (unless
such Security shall have been called for redemption, in which case no
such payment shall be required). A
B-4
<PAGE>
Security converted on an interest payment date need not be accompanied
by any payment, and the interest on the principal amount of the
Security being converted will be paid on such interest payment date to
the registered holder of such Security on the immediately preceding
record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements
and transfer documents if required by the Registrar or Conversion
Agent and (4) pay any transfer or similar tax if required. A Holder
may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations
of $1,00010 and whole multiples of $1,000. The transfer of Securities
may be registered and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it
need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
11. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its owner for
all purposes.
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal
amount of the securities of all series affected by the amendment./11/
Subject to certain exceptions, a default on a series may be waived
with the consent of the holders of a majority in principal amount of
the series.
B-5
<PAGE>
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any ambiguity,
omission, defect or inconsistency; to provide for assumption of
Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
13. RESTRICTIVE COVENANTS./12/
The Securities are unsecured general obligations of the Company
limited to $ principal amount. The Indenture does not limit
other unsecured debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./13/
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to redemption or maturity. U.S. Government Obligations are
securities backed by the full faith and credit of the United States of
America or certificates representing an ownership interest in such
Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/14/ includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after notice
to it in the performance of any of its other agreements applicable to
the Securities; certain events of bankruptcy or insolvency; and any
other Event of Default provided for in the series. If an Event of
Default occurs and is continuing, the
B-6
<PAGE>
Trustee or the holders of at least 25% in principal amount of the
Securities may declare the principal/15/ of all the Securities to be
due and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment of principal or
interest) if it determines that withholding notice is in their
interests. The Company must furnish annual compliance certificates to
the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
The Chase Manhattan Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual
signature of the Trustee.
20. ABBREVIATIONS.
B-7
<PAGE>
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE AND THE BOND RESOLUTION, WHICH
CONTAINS THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
SOUTHWESTERN PUBLIC SERVICE COMPANY, TYLER AT SIXTH, AMARILLO, TEXAS 79101,
ATTENTION: CORPORATE SECRETARY.
B-8
<PAGE>
[FACE OF COUPON]
...............
[$]............
Due............
SOUTHWESTERN PUBLIC SERVICE COMPANY
[Title of Security]
Unless the Security attached to this coupon has been called for
redemption, Southwestern Public Service Company (the "Company") will pay to
bearer, upon surrender, the amount shown hereon when due. This coupon may be
surrendered for payment to any Paying Agent listed on the back of this coupon
unless the Company has replaced such Agent. Payment may be made by check. This
coupon represents months' interest.
Southwestern Public Service
Company
By_______________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-9
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum, insert a
description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so
state.
2 If the method or currency of payment is different, insert a statement
thereof.
3 If applicable. A restriction on redemption or refunding or any provision
applicable to its redemption other may be added.
4 If applicable.
5 If the Security is a Discounted Security, insert amount to be redeemed or
method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7 If applicable.
8 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
9 If additional or different adjustment provisions apply so specify.
10 If applicable. Insert additional or different denominations and terms as
appropriate.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants apply, insert a brief
summary thereof.
13 If applicable. If different defeasance terms apply, insert a brief summary
thereof.
14 If additional or different Events of Default apply, insert a brief summary
thereof.
<PAGE>
15 If the Security is a Discounted Security, set forth the amount due and
payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted and Bearer
Securities.
-2-
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
: :
:_______________________________________:
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: _______________ Your Signature: _______________________________________
_______________________________________
(Sign exactly as your name appears on the other side of this Security)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
_____
/ /
-----
To convert only part of this Security, state the amount (must be
in integral multiples of $1,000);
$_____________________________
If you want the securities delivered upon conversion made out in
another person's name, fill in the form below:
(Insert other person's Social Security or Tax I.D. Number)
______________________________
______________________________
______________________________
______________________________
(Print or type other
person's name, address
and zip code)
Date: _________ Signature(s): ________________________________________________
________________________________________________
(Sign exactly as your name(s) appear(s) on the
other side of this Security)
D-1
<PAGE>
Signature(s) guaranteed by: _________________________________________________
(All signatures must be guaranteed by a member of
a national securities exchange or of the National
Association of Securities Dealers, Inc. or by a
commercial bank or trust company located in the
United States)
C-2
<PAGE>
Exhibit 99.3
EXHIBIT C
================================================================================
SOUTHWESTERN PUBLIC SERVICE COMPANY
and
THE CHASE MANHATTAN BANK,
As Trustee
_____________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 1, 1999
Supplementing the Indenture
Dated as of February 1, 1999
____________________________________
================================================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 1, 1999, is between
SOUTHWESTERN PUBLIC SERVICE COMPANY, a New Mexico corporation (hereinafter
called the "Issuer" or the "Company"), having its principal office at Tyler at
Sixth, Amarillo, Texas 79101, and THE CHASE MANHATTAN BANK, as Trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at 450
West 33rd Street, New York, New York 10001.
Recitals of the Issuer
----------------------
The Issuer and the Trustee have heretofore entered into an Indenture, dated
as of February 1, 1999 (such Indenture, as supplemented by this supplemental
indenture being hereinafter referred to as the "Indenture"), relating to the
issuance at any time or from time to time of its Securities on terms to be
specified at the time of issuance. As of the date hereof, no Securities have
been issued under the Indenture. Terms used and not otherwise defined herein
shall (unless the context otherwise clearly requires) have the respective
meanings given to them in the Indenture.
The Indenture provides in Article Two thereof that, prior to the issuance
of Securities of any series, the form of such Securities and the terms
applicable to such series shall be established in, or pursuant to, the authority
granted in a resolution of the Board of Directors (delivered to the Trustee in
the form of a Bond Resolution) or established in one or more indentures
supplemental thereto.
The Issuer desires by this supplemental indenture, among other things, to
establish the form of the Securities of a series, to be titled Series A Senior
Notes, 6.20% due March 1, 2009 of the Issuer, and to establish the terms
applicable to such series, pursuant to Sections 2.01 and 10.01 of the Indenture.
The Issuer has duly authorized the execution and delivery of this supplemental
indenture.
Article Ten of the Indenture provides that the Issuer, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time and
at any time amend the Indenture without the consent of Securityholders for
certain purposes enumerated in Section 10.01 thereof, including purposes set
forth in subsection (4) of said Section 10.01.
The execution and delivery of this supplemental indenture by the parties
hereto are in all respects authorized by the provisions of the Indenture.
All things necessary have been done to make this supplemental indenture a
valid agreement of the Issuer, in accordance with its terms.
<PAGE>
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, as follows:
ARTICLE ONE
Establishment of Series A Notes, 6.20% due March 1, 2009
--------------------------------------------------------
Section 1.01. The title of the series of the Securities established by
this supplemental indenture shall be Series A Senior Notes, 6.20% due March 1,
2009 of the Issuer (hereinafter called the "Series A Notes"). The Series A
Notes shall be issued in registered form substantially in the form set forth in
Exhibit A hereto (which is hereby incorporated herein and made a part hereof),
- ---------
subject to changes in the form thereof made by the Issuer and acceptable to the
Trustee.
Section 1.02. The Series A Notes shall be limited to $100,000,000 in
aggregate principal amount.
Section 1.03. The Series A Notes may be issued in whole or in part as one
or more Global Securities and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global Securities.
The Depository for such Global Security or Global Securities representing Series
A Notes may surrender one or more Global Securities representing Series A Notes
in exchange in whole or in part for individual Series A Notes on such terms as
are acceptable to the Issuer and such Depository and otherwise subject to the
terms of Section 2.12 of the Indenture.
Section 1.04. The Issuer hereby appoints, or confirms the appointment of,
The Chase Manhattan Bank as the initial Trustee, Transfer Agent and Paying
Agent, subject to the provisions of the Indenture with respect to resignation,
removal and succession, and subject, further, to the right of the Issuer to
appoint additional agents (including Paying Agents).
Section 1.05. The terms of the Series A Notes shall be as set forth in
Exhibit A hereto, and shall include the payment and other terms reflected on the
- ---------
Series A Notes as actually executed, authenticated and delivered under the
Indenture.
-2-
<PAGE>
ARTICLE TWO
Miscellaneous
-------------
Section 2.01. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
of this supplemental indenture. The Indenture, as supplemented by this
supplemental indenture, is in all respects hereby adopted, ratified and
confirmed.
Section 2.02. This supplemental indenture may be executed in any number of
counterparts, and on separate counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 2.03. If any provision of this supplemental indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, through operation of Section 318(c), such imposed duties
shall control.
Section 2.04. The Article headings herein are for convenience only and
shall not affect the interpretation hereof.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested as of the 1st day of March, 1999.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By: /s/ Brian P. Jackson
-------------------------------
Name: Brian P. Jackson
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[Seal]
Attest:
/s/ Cathy J. Hart
-------------------------------
Name: Cathy J. Hart
Title: Assistant Secretary
THE CHASE MANHATTAN BANK
By: /s/ W.B. Dodge
-------------------------------
Authorized Signatory
W.B. Dodge
Vice President
[Seal]
Attest:
/s/ William G. Keenan
-----------------------------------
Name: William G. Keenan
Title: Trust Officer
-4-
<PAGE>
EXHIBIT A
---------
CUSIP: No.________ $100,000,000
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 WATER STREET, NEW YORK, NEW
YORK), TO THE TRUSTEE 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 THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., 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.
SOUTHWESTERN PUBLIC SERVICE COMPANY
Series A Senior Notes, 6.20% due March 1, 2009
Southwestern Public Service Company promises to pay to _________ or registered
assigns the principal sum of One Hundred Million Dollars on March 1, 2009.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
<PAGE>
SOUTHWESTERN PUBLIC SERVICE COMPANY
Series A Senior Notes, 6.20% due March 1, 2009
1. Interest.
Southwestern Public Service Company ("Company"), a corporation
organized and existing under the laws of the State of New Mexico,
promises to pay interest on the principal amount of this Note at the
rate per annum shown above. The Company will pay interest on March 1
to the holder of record on February 15 and on September 1 to the holder
of record on August 15 of each year commencing September 1, 1999.
Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 2,
1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.
The Company will pay interest on this Note to the person who is the
registered holder of the Note at the close of business on the record
date for the next interest payment date, except as otherwise provided
in the Indenture. This Note must be surrendered to a Paying Agent to
collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money. It may mail
an interest check to the Holder's registered address.
3. Bond Agents.
Initially, The Chase Manhattan Bank, 450 West 33rd Street, New York,
New York 10001 Attention: Corporate Trust Group, will act as Paying
Agent and Transfer Agent. The Company may change any Paying Agent or
Transfer Agent without notice or provide for more than one such agent.
The Company or any Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the Trustee.
4. Indenture.
This Note is one of a series of securities issued under an Indenture
dated as February 1, 1999 ("Indenture") between the Company and The
Chase Manhattan Bank ("Trustee"). The terms of this Note include those
stated in the Indenture including in the supplemental indenture dated
as of March 1, 1999 creating the Notes
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of this series and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb).
Securityholders are referred to the Indenture, the supplemental
indenture and the Act for a statement of such terms.
5. Redemption.
The Notes of this series are subject to redemption upon not less than
30 days' notice by first class mail, in whole at any time or in part
from time to time at the option of the Company at a redemption price
equal to the greater of (i) 100% of the principal amount of the Notes
of this series to be redeemed or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield
plus one and one-half tenths of one percent (.15%), plus in each case
accrued and unpaid interest to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming 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.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes 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 Notes of this
series.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such release
(or any successor release) is not published or does not contain such
prices on such business day, (A) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest
and lowest such Reference Treasury Dealer
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Quotations for such redemption date, or (B) if the Trustee obtains
fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means Salomon Smith Barney Inc. or its
successor ("Salomon") or, if such firm is unwilling or unable to select
the Comparable Treasury Issue, one of the remaining Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Salomon and any other
primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer") designated by, and not affiliated with, Salomon,
provided, however, that if Salomon or any of its designees shall cease
to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, 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 Company by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days before the
redemption date to the Holder hereof to be redeemed at such Holder's
registered address.
A notice of redemption may provide that it is subject to the occurrence
of any event before the date fixed for such redemption as described in
such notice ("Conditional Redemption") and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the
redemption have occurred before such date or have been waived by the
Company.
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7. Denominations, Transfer, Exchange.
The Notes of this series are in registered form without coupons in
denominations of $1000 and whole multiples of $1000. The transfer of
this Note may be registered and this Note may be exchanged as provided
in the Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of this Note
or portion thereof selected for redemption. Also, it need not exchange
or register the transfer of this Note for a period of 15 days before a
selection of Securities to be redeemed.
8. Persons Deemed Owners.
The registered holder of this Note may be treated as its owner for all
purposes.
9. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Notes of this
series may be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by the
amendment. Subject to certain exceptions, a default on a series may be
waived with the consent of the holders of a majority in principal
amount of the series.
Without the consent of any Securityholder, the Indenture or the Notes
of this series may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for assumption
of Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
10. Restrictive Covenants.
The Notes of this series are unsecured general obligations of the
Company limited to $100,000,000 principal amount. The Indenture does
not limit other unsecured debt.
11. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
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12. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions as set forth in Article 8 of the
Indenture, the Company at any time may terminate some or all of its
obligations under this Note and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on this Note to redemption or maturity. U.S.
Government Obligations are securities backed by the full faith and
credit of the United States of America or certificates representing an
ownership interest in such Obligations.
13. Defaults and Remedies.
An Event of Default includes: default for 60 days in payment of
interest on the Notes of this series; default in payment of principal
on the Notes of this series; default in payment or satisfaction of any
sinking fund obligation with respect to this series; default by the
Company for a specified period after notice to it in the performance of
any of its other agreements applicable to the Notes of this series;
certain events of bankruptcy or insolvency; and any other Event of
Default provided for in this series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least 25% in principal
amount of the Notes of this series may declare the principal of all the
Notes of this Series to be due and payable immediately.
Securityholders may not enforce the Indenture or the Notes of this
series except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes of this series. Subject to certain limitations, holders of a
majority in principal amount of the Notes of this series may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing default (except
a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish
annual compliance certificates to the Trustee.
14. Trustee Dealings with Company.
The Chase Manhattan Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
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15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
this Note or the Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. The Holder hereof by
accepting this Note waives and releases all such liability. The waiver
and release are part of the consideration for the issue of this Note.
16. Authentication.
This Note shall not be valid until authenticated by a manual signature
of the Trustee.
17. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and
not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
The Company will furnish to the Holder hereof upon written request and
without charge a copy of the Indenture including the supplemental indenture,
which contains the text of this Note in larger type. Requests may be made to:
Southwestern Public Service Company, Tyler at Sixth, Amarillo, Texas 79101,
Attention: Corporate Secretary.
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Dated:_________, 1999
THE CHASE MANHATTAN BANK SOUTHWESTERN PUBLIC SERVICE
Transfer Agent and Paying Agent COMPANY
By: _______________________
Brian P. Jackson
Senior Vice President
Chief Financial Officer &
Treasurer
Attest
By: ______________________
Cathy J. Hart
Assistant Secretary
(SEAL)
Authenticated:
THE CHASE MANHATTAN BANK
By: ________________________
Authorized Signature Vice-President
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________
: :
: :
----------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________
_______________________________
_______________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this Note
on the books of the Company. That agent may substitute another to act for him.
Date:_______________________________ Your Signature_______________________
(Sign exactly as your name appears on the other side of This Note)
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