Exhibit 4.1
---------------------------------------------
ARIZONA PUBLIC SERVICE COMPANY
TO
THE CHASE MANHATTAN BANK
TRUSTEE
Fifth Supplemental Indenture
Dated as of October 1, 2001
To
Indenture
Dated as of January 15, 1998
6.375% Notes Due 2011
---------------------------------------------
FIFTH SUPPLEMENTAL INDENTURE, dated as of October 1, 2001, between Arizona
Public Service Company, a corporation duly organized and existing under the laws
of the State of Arizona (herein called the "Company"), having its principal
office at 400 North Fifth Street, Phoenix, Arizona 85004, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee (herein called the
"Trustee") under the Indenture dated as of January 15, 1998 between the Company
and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities"), said Securities to be issued
in one or more series as provided in the Indenture.
Pursuant to the terms of the Indenture, the Company desires to provide for
the establishment of a new series of its Securities to be known as its 6.375%
Notes Due 2011 (herein called the "Notes Due 2011"), the form and substance of
such Notes Due 2011 and the terms, provisions, and conditions thereof to be set
forth as provided in the Indenture and this Fifth Supplemental Indenture.
All things necessary to make this Fifth Supplemental Indenture a valid
agreement of the Company, and to make the Notes Due 2011, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been done.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes Due
2011 by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes Due 2011 and the terms,
provisions, and conditions thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes Due 2011, as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE NOTES DUE 2011
SECTION 101. There shall be and is hereby authorized a series of Securities
designated the "6.375% Notes Due 2011" initially limited in aggregate principal
amount to $400,000,000, which amount shall be as set forth in any Company Order
for the authentication and delivery of Notes Due 2011. The Notes Due 2011 shall
mature and the principal shall be due and payable together with all accrued and
unpaid interest thereon on October 15, 2011, and shall be issued in the form of
registered Notes Due 2011 without coupons.
The foregoing principal amount of the Notes Due 2011 may be increased from
time to time as permitted by Section 301 of the Indenture. All Notes Due 2011
need not be issued at the same time and such series may be reopened at any time,
without notice to, or the consent of, the then
2
existing Holders, for issuances of additional Notes Due 2011. Any such
additional Notes Due 2011 will be equal in rank and have the same maturity,
payment terms, redemption features, and other terms, except for the payment of
interest accruing prior to the issue date of the further Notes Due 2011 and for
the first payment of interest following the issue date of the further Notes Due
2011, as those initially issued.
SECTION 102. The Notes Due 2011 shall be issued in certificated form,
except that the Notes Due 2011 shall be issued initially as a Global Security to
and registered in the name of Cede & Co., as nominee of The Depository Trust
Company, as Depositary therefor. Any Notes Due 2011 to be issued or transferred
to, or to be held by, Cede & Co. (or any successor thereof) for such purpose
shall bear the depositary legend in substantially the form set forth at the top
of the form of Note Due 2011 in Article Two hereof (in lieu of that set forth in
Section 204 of the Indenture), unless otherwise agreed by the Company, such
agreement to be confirmed in writing to the Trustee. Such Global Security may be
exchanged in whole or in part for Notes Due 2011 registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than such Depositary or a nominee thereof only under the
circumstances set forth in Clause (2) of the last paragraph of Section 305 of
the Indenture, or such other circumstances in addition to or in lieu of those
set forth in Clause (2) of the last paragraph of Section 305 of the Indenture as
to which the Company shall agree, such agreement to be confirmed in writing to
the Trustee. Principal of, and premium, if any, and interest on the Notes Due
2011 will be payable, the transfer of Notes Due 2011 will be registrable and
Notes Due 2011 will be exchangeable for Notes Due 2011 bearing identical terms
and provisions, at the office or agency of the Company in the Borough of
Manhattan, The City and State of New York; PROVIDED, HOWEVER, that payment of
interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Security Register.
SECTION 103. Each Note Due 2011 will bear interest at the rate of 6.375%
from October 5, 2001 or from the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for until
the principal thereof is paid or made available for payment, payable on April 15
and October 15 of each year (each, an "Interest Payment Date"), commencing on
April 15, 2002, to the person in whose name such Note Due 2011 or any
Predecessor Security is registered, at the close of business on April 1 or
October 1, as the case may be, whether or not a Business Day, immediately
preceding the Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date, and may be paid to the person in
whose name the Note Due 2011 (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of the Notes Due 2011 not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes Due 2011 may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. Interest will accrue from October 5,
2001 to, but not including, the
3
relevant payment date. In the event that any date on which interest is payable
on the Notes Due 2011 is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), in each
case with the same force and effect as if made on such date. A "Business Day"
shall mean any day, except a Saturday, a Sunday or a legal holiday in the City
of New York on which banking institutions are authorized or required by law,
regulation or executive order to close.
SECTION 104. The Company, at its option, may redeem all, or, from time to
time any part of the Notes Due 2011, upon notice as provided in the Indenture at
a Redemption Price equal to the greater of (a) the principal amount of the Notes
Due 2011 (or portion thereof) to be redeemed plus interest (if any) accrued to
the Redemption Date or (b) the Make-Whole Amount with respect to the Notes Due
2011 to be redeemed.
For purposes of this Section 104, the following terms shall have the
following meanings:
"MAKE-WHOLE AMOUNT" means the sum, as determined by a Quotation Agent,
of the present values of the principal amount of the Notes Due 2011 to be
redeemed, together with scheduled payments of interest (exclusive of interest to
the Redemption Date) from the Redemption Date to the Stated Maturity of the
Notes Due 2011, in each case discounted to the Redemption Date on a semi-annual
basis, assuming a 360-day year consisting of twelve 30-day months, at the
Adjusted Treasury Rate, plus accrued interest (if any) on the principal amount
of the Notes Due 2011 being redeemed to the Redemption Date.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15 (519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded U.S. Treasury securities adjusted to
constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term of the Notes Due 2011,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per year equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date, in each
case calculated on the third Business Day preceding the Redemption Date, plus in
each case 0.25%.
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the Stated Maturity of the Notes Due 2011 that would
be utilized, at the time of selection and in
4
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes Due
2011.
"QUOTATION AGENT" means the Reference Treasury Dealer selected by the
Trustee after consultation with the Company.
"REFERENCE TREASURY DEALER" means a primary U.S. Government securities
dealer selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, if clause (ii) of the definition of Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee,
Reference Treasury Dealer Quotations for such Redemption Date.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
The Trustee shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in acting upon the
Company's calculation of any Redemption Price, including any Make-Whole Amount.
The Company shall give the Trustee written notice of the Redemption Price,
promptly after the calculation thereof.
Notwithstanding Section 1104 of the Indenture, any notice of redemption
given pursuant to said Section with respect to the foregoing redemption need not
set forth the Redemption Price but only the manner of calculation thereof.
SECTION 105. The Notes Due 2011 shall be defeasible pursuant to Section
1302 or 1303 of the Indenture.
ARTICLE TWO
FORM OF NOTES DUE 2011
SECTION 201. The Notes Due 2011 and the Trustee's certificate of
authentication to be endorsed thereon are to be substantially in the following
forms:
Form of Face of Security:
5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ARIZONA PUBLIC
SERVICE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARIZONA PUBLIC SERVICE COMPANY
6.375% Note Due 2011
No. _________ $400,000,000
CUSIP No. 040555 CC 6
Arizona Public Service Company, a corporation duly organized and existing
under the laws of Arizona (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Four Hundred Million Dollars on October 15, 2011, and to pay
interest thereon from October 5, 2001 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on April 15 and October 15 in each year, commencing April 15, 2002, at
the rate of 6.375%, until the principal hereof is paid or made available for
payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be April 1 or October 1, as the case may be, immediately
preceding the Interest Payment Date (whether or not a Business Day). Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for
6
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ARIZONA PUBLIC SERVICE COMPANY
By
-------------------------------------
Vice President, Finance
Attest:
---------------------------------
Vice President and Secretary
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of January 15, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, which is unlimited
in aggregate principal amount.
The Securities of this series are subject to redemption upon not less than
30 days' notice by mail at the option of the Company, in whole or in part, from
time to time at a Redemption Price equal to the greater of (a) the principal
amount of the Securities (or portion thereof) of this series to be redeemed plus
interest (if any) accrued to the Redemption Date or (b) the Make-Whole Amount
7
(as defined below) with respect to the Securities of this series to be redeemed
(the "Redemption Price").
If notice has been given as provided in the Indenture and funds for the
redemption of any Securities (or any portion thereof) called for redemption
shall have been made available on the Redemption Date referred to in such
notice, such Securities (or any portion thereof) will cease to bear interest on
the date fixed for such redemption specified in such notice and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price.
Notice of any optional redemption of Securities of this series (or any
portion thereof) will be given to Holders at their addresses, as shown in the
Security Register for such Securities, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will specify,
among other items, the Redemption Price or, if not then known, the manner of
calculation thereof, and the principal amount of the Securities of this series
held by such Holder to be redeemed. If less than all of the Securities of this
series are to be redeemed at the option of the Company, the Trustee shall
select, in such manner as it shall deem fair and appropriate, the portion of
such Securities to be redeemed in whole or in part.
As used herein:
"MAKE-WHOLE AMOUNT" means the sum, as determined by a Quotation Agent,
of the present values of the principal amount of the Securities of this series
to be redeemed, together with scheduled payments of interest (exclusive of
interest to the Redemption Date) from the Redemption Date to the Stated Maturity
of the Securities of this series, in each case discounted to the Redemption Date
on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day
months, at the Adjusted Treasury Rate, plus accrued interest (if any) on the
principal amount of the Securities of this series being redeemed to the
Redemption Date.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15 (519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded U.S. Treasury securities adjusted to
constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the remaining term of the Securities of this
series, yields for the two published maturities most closely corresponding to
the Comparable Treasury Issue shall be determined and the Adjusted Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per year equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date, in each
case calculated on the third Business Day preceding the Redemption Date, plus in
each case 0.25%.
8
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by the Quotation Agent as having a maturity comparable to the remaining term
from the Redemption Date to the Stated Maturity of the Securities of this series
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"QUOTATION AGENT" means the Reference Treasury Dealer selected by the
Trustee after consultation with the Company.
"REFERENCE TREASURY DEALER" means a primary U.S. Government securities
dealer selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, if clause (ii) of the definition of Adjusted Treasury Rate is applicable,
the average of three, or such lesser number as is obtained by the Trustee,
Reference Treasury Dealer Quotations for such Redemption Date.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
The Securities of this series will not be subject to any sinking fund.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of the Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee without
the consent of such Holders in certain limited circumstances or with the consent
of the Holders of 66-2/3% in principal amount of the Securities at the time
Outstanding of each series to
9
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
10
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Form of Trustee's Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: _____________________ THE CHASE MANHATTAN BANK
AS TRUSTEE
By
-------------------------------------
AUTHORIZED OFFICER
ARTICLE THREE
ORIGINAL ISSUE OF NOTES DUE 2011
SECTION 301. Subject to Section 101, the Notes Due 2011 in the aggregate
principal amount of $400,000,000 may, upon execution of this Fifth Supplemental
Indenture, or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes Due 2011 in accordance with a Company Order
delivered to the Trustee by the Company, without any further action by the
Company.
ARTICLE FOUR
PAYING AGENT AND REGISTRAR
SECTION 401. The Chase Manhattan Bank will be the Paying Agent and Security
Registrar for the Notes Due 2011.
11
ARTICLE FIVE
SUNDRY PROVISIONS
SECTION 501. Except as otherwise expressly provided in this Fifth
Supplemental Indenture or in the form of Notes Due 2011 or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form
of Notes Due 2011 that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
SECTION 502. The Indenture, as heretofore supplemented and amended, and as
supplemented by this Fifth Supplemental Indenture, is in all respects ratified
and confirmed, and this Fifth Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and therein provided.
SECTION 503. The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture, as heretofore supplemented
and amended, set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Fifth Supplemental Indenture or
for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general, each and every term and condition
contained in Article Six of the Indenture shall apply to and form a part of this
Fifth Supplemental Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations, and insertions, if
any, as may be appropriate to make the same conform to the provisions of this
Fifth Supplemental Indenture.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ARIZONA PUBLIC SERVICE COMPANY
By: Barbara M. Gomez
------------------------------------
Barbara M. Gomez
Treasurer
Attest:
Faye Widenmann
------------------------------------
Faye Widenmann
Vice President and Secretary
THE CHASE MANHATTAN BANK, as Trustee
By: Natalia Rodriguez
------------------------------------
Natalia Rodriguez
Assistant Vice President
Attest:
Virginia Dominguez
------------------------------------
Name: Virginia Dominguez
Title: Trust Officer
13
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the 4th day of October, 2001, before me personally came Barbara M.
Gomez, to me known, who, being by me duly sworn, did depose and say that she is
the Treasurer of Arizona Public Service Company, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that she signed her name thereto by like authority.
Linda G. Redman
----------------------------------------
Notary Public
My Commission Expires:
February 8, 2003
------------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of October, 2001, before me personally came N. Rodriguez, to
me known, who, being by me duly sworn, did depose and say that he/she is an
Assistant Vice President of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like authority.
Emily Fayan
----------------------------------------
Notary Public
My Commission Expires:
December 31, 2001
------------------------------------
14