AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------
ARIZONA PUBLIC SERVICE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
ARIZONA 86-0011170
(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
400 North Fifth Street
Phoenix, Arizona 85004
(602) 250-1000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-----------------
MATTHEW P. FEENEY
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85073
(602) 382-6239
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-----------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement, as determined by
market conditions and other factors.
-----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
-----------------
C A L C U L A T I O N O F R E G I S T R A T I O N F E E
================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount Offering Aggregate Amount of
Securities to be to be Price Offering Registration
Registered Registered Per Unit Price Fee
- --------------------------------------------------------------------------------
First Mortgage Bonds (1)(3) (2) (1)(2)(3) N/A
- --------------------------------------------------------------------------------
Senior Notes (1)(4) (2) (1)(2)(4) N/A
- --------------------------------------------------------------------------------
Debt Securities (1)(5) (2) (1)(2)(5) N/A
- --------------------------------------------------------------------------------
Total $125,000,000 (2) $125,000,000 $37,879(6)
================================================================================
(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$125,000,000. If any such securities are issued at an original issue
discount, then the aggregate initial offering price as so discounted shall
not exceed $125,000,000, notwithstanding that the stated principal amount of
such securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3) Subject to Footnote (1), there are being registered hereunder an
indeterminate principal amount of First Mortgage Bonds as may be sold, from
time to time, by the Registrant.
(4) Subject to Footnote (1), there are being registered hereunder an
indeterminate amount of Senior Notes as may be sold, from time to time, by
the Registrant.
(5) Subject to Footnote (1), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from time
to time, by the Registrant.
(6) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933.
Pursuant to Rule 429 of the rules and regulations under the Securities Act of
1933, this Registration Statement contains a combined prospectus relating to the
$125,000,000 principal amount of securities registered hereby and $25,000,000
principal amount of securities registered on November 14, 1996 pursuant to
Registration No. 333-15379. The previously-paid filing fees associated with the
referenced securities registered under Registration No. 333-15379 totalled
$7,576.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 21, 1997
ARIZONA PUBLIC SERVICE COMPANY
FIRST MORTGAGE BONDS
SENIOR NOTES
DEBT SECURITIES
-----------------
Arizona Public Service Company (the "Company") intends from time to time to
issue up to $150,000,000 aggregate principal amount of its first mortgage bonds
(the "New Bonds"), senior notes (the "Senior Notes"), or unsecured debt
securities ("Debt Securities") of the Company (collectively, the "Securities"),
in one or more series at prices and on terms to be determined at the time of
sale.
For each issue of Securities for which this Prospectus is being delivered
(the "Offered Bonds," the "Offered Senior Notes," or the "Offered Debt
Securities" and, collectively, the "Offered Securities"), there will be an
accompanying Prospectus Supplement (the "Prospectus Supplement") that sets
forth, without limitation and to the extent applicable, the specific
designation, aggregate principal amount, denomination, maturity, premium, if
any, rate of interest (which may be fixed or variable) or method of calculation
thereof, time of payment of interest, any terms for redemption, any sinking fund
provisions, any subordination provisions, the initial public offering price, the
names of any underwriters or agents, the principal amounts, if any, to be
purchased by the underwriters, the compensation of such underwriters or agents,
and any other special terms of the Offered Securities. The Prospectus Supplement
relating to any series of Offered Securities will also contain information
concerning certain United States federal income tax considerations, if
applicable to the Offered Securities.
The Company may sell Securities directly to purchasers or through agents
designated from time to time by the Company or to or through underwriters or a
group of underwriters which may be managed by one or more underwriters. If any
agents of the Company or any underwriters are involved in the sale of Securities
in respect of which this Prospectus is being delivered, the names of such agents
or underwriters and any applicable commission or discount will be set forth in
the applicable Prospectus Supplement. The net proceeds to the Company from the
sale of Securities will be the public offering price of such Secutiries less
such discount, in the case of an offering through an underwriter, or the
purchase price of such Securities less such commission, in the case of an
offering through an agent, and less, in each case, other expenses of the Company
associated with the issuance and distribution of such Securities.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------------
The date of this Prospectus is , 1997
AVAILABLE INFORMATION
Arizona Public Service Company (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and in accordance therewith files reports, proxy statements,
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, and other information can be
obtained at prescribed rates from the Public Reference Section of the Commission
or may be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and
at certain of its regional offices located at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661; and Seven World Trade Center, Suite 1300, New
York, New York 10048. In addition, such material may be accessed electronically
by means of the Commission's Web Site on the Internet at http://www.sec.gov.
Certain securities of the Company are listed on the New York Stock Exchange.
Reports, proxy materials, and other information concerning the Company can be
inspected at the office of this exchange at 20 Broad Street, 7th Floor, New
York, New York 10005.
-----------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
(File No. 1-4473) are incorporated by reference in this Prospectus:
1. The Company's Form 10-K Report for the fiscal year ended December 31, 1996
(the "1996 10-K Report");
2. The Company's Form 10-Q Report for the fiscal quarter ended March 31, 1997
(the "March 10-Q Report"); and
3. The Company's Form 8-K Report, dated April 7, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14, or
15(d) of the 1934 Act after the filing date of the March 10-Q Report and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the oral
or written request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus by
reference, other than exhibits to such documents. Request for such copies should
be directed to Arizona Public Service Company, Office of the Secretary, Station
9068, P.O. Box 53999, Phoenix, Arizona 85072-3999, (602) 250-3252.
2
SELECTED INFORMATION
The following material is qualified in its entirety by reference to the
detailed information and financial statements incorporated by reference in this
Prospectus.
THE OFFERING
Securities Offered .................... Up to $150,000,000 of any combination of
First Mortgage Bonds, Senior Notes, and
Debt Securities.
Application of Proceeds ............... Except as otherwise described in the
Prospectus Supplement, the net proceeds
of the Offered Securities will be
applied primarily to the redemption,
repurchase, repayment, or retirement of
outstanding indebtedness and preferred
stock, and temporary investment pending
such application.
THE COMPANY
Business .............................. Electric utility servicing approximately
738,000 customers in an area that
includes the entire state of Arizona
with the exception of Tucson and about
one-half of the Phoenix area.
Generating Fuel Mix (estimated for the
twelve months ended March 31,
1997) ................................Coal-- 45%; Nuclear-- 33%;
Purchases--19%; Gas and Other--3%;
FINANCIAL DATA (THOUSANDS OF DOLLARS):
TWELVE MONTHS ENDED
----------------------------------------------
DECEMBER 31,
MARCH 31, ----------------------------------
1997(1) 1996 1995 1994
---------- ---------- ----------- ----------
Electric Operating Revenues .....$1,752,032 $1,718,272 $1,614,952 $1,626,168
========== ========== ========== ==========
Net Income .......................$ 226,510 $ 243,471 $ 239,570 $ 243,486
========== ========== ========== ==========
Ratio of Earnings to
Fixed Charges ................... 2.75 2.84 2.77 2.96
CAPITALIZATION DATA (THOUSANDS OF DOLLARS):
AS ADJUSTED(2)
AS OF -----------------------
MARCH 31, 1997(1) AMOUNT PERCENTAGE
----------------- ---------- ----------
Total Debt (including current
maturities).......................... $2,209,535 $2,235,535 54.1%
Preferred Stock ...................... 192,387 187,387 4.5
Common Stock Equity .................. 1,712,564 1,712,564 41.4
---------- ---------- ----------
Total Capitalization ............... $4,114,486 $4,135,486 100.0%
========== ========== ==========
(1) Financial information as of and for the twelve months ended March 31, 1997
is unaudited but, in the judgment of the Company's management, contains all
necessary adjustments for a fair presentation of the financial position of
the Company on such date and the results of operations for such period.
(2) For the (i) redemption, repayment, repurchase or retirement of $5 million of
the Company's cumulative preferred stock; (ii) refinancing of $24 million of
the Company's long-term debt; and (iii) issuance of $50 million of the
Company's senior notes. It is assumed that the net proceeds from the
issuance of the Offered Securities will be used for the refinancing of a
similar amount of outstanding long-term debt.
3
THE COMPANY
The Company was incorporated in 1920 under the laws of Arizona and is
principally engaged in providing electricity in the State of Arizona. The
principal executive offices of the Company are located at 400 North Fifth
Street, Phoenix, Arizona 85004 and its telephone number is (602) 250-1000.
APPLICATION OF PROCEEDS
Except as otherwise described in the Prospectus Supplement, the net proceeds
of the Offered Securities will be applied primarily to the redemption,
repurchase, repayment, or retirement of outstanding indebtedness and preferred
stock. Any proceeds not immediately so applied when received may be invested
temporarily, pending such application, in United States government or agency
obligations, commercial paper, bank certificates of deposit, or repurchase
agreements collateralized by United States government or agency obligations, or
will be deposited with banks.
EARNINGS RATIOS
The following table sets forth the Company's historical ratio of earnings to
fixed charges for each of the indicated periods:
TWELVE MONTHS ENDED
- --------------------------------------------------------------------------------
DECEMBER 31,
MARCH 31, ------------------------------------------------------------
1997 1996 1995 1994 1993 1992
- --------- ---- ---- ---- ---- ----
2.75 2.84 2.77 2.96 2.99 2.73
For the purposes of these computations, "earnings" are defined as the sum of
pre-tax income plus fixed charges of the Company and its subsidiaries; "fixed
charges" consist of interest on debt, amortization of debt discount, premium,
and expense and an estimated interest factor in rentals.
SECURITIES
The Securities may be issued in one or more series as (i) first mortgage
bonds ("New Bonds"), (ii) notes secured by New Bonds or, in the circumstances
described under the caption "Description of Senior Notes -- Security; Release
Date," as unsecured notes (such notes are herein referred to as "Senior Notes"),
or (iii) unsecured debt securities ("Debt Securities"). From and after the
"Release Date" (as defined below), any outstanding Senior Notes secured by New
Bonds when issued will cease to be secured and will become unsecured obligations
of the Company. The New Bonds are described below under the caption "Description
of New Bonds," the Senior Notes are described below under the caption
"Description of Senior Notes," and the Debt Securities are described below under
the caption "Description of Debt Securities."
DESCRIPTION OF NEW BONDS
GENERAL
The New Bonds may be issued in one or more new series under the Mortgage and
Deed of Trust dated as of July 1, 1946 between the Company and The Bank of New
York, as successor Trustee ("Bond Trustee"), which as heretofore amended and
supplemented is herein referred to as the "Mortgage," and which is to be further
amended and supplemented by appropriate Supplemental Indentures ("Bond
Supplemental Indentures"). The following summary does not purport to be complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the Mortgage, the New Bonds, and the Bond Supplemental
Indentures, the forms of which are filed, or will be filed, as exhibits to the
registration statement of which this Prospectus forms a part. Whenever
particular provisions or defined
4
terms in such documents are referred to herein or in a Prospectus Supplement,
such provisions or defined terms are incorporated by reference herein or
therein, as the case may be.
Reference is made to the Prospectus Supplement relating to any particular
issue of Offered Bonds for the following terms: (1) the aggregate principal
amount of the Offered Bonds; (2) the date on which such Offered Bonds mature;
(3) the rate per annum at which such Offered Bonds will bear interest; (4) the
times at which such interest will be payable; (5) the date, if any, after which
such Offered Bonds may be redeemed at the option of the Company and the
redemption price; (6) whether any of such Offered Bonds will be issuable in
whole or in part in the form of one or more Global Securities and, if so, the
Depositaries for such Global Securities, the form of any legend or legends to be
borne by any such Global Security, and any circumstances under which any such
Global Security may be exchanged in whole or in part for Offered Bonds,
registered in the names of persons other than the Depositary for such Global
Security or its nominee; and (7) any other special terms. Interest will be paid
to the person in whose name the Offered Bonds are registered at the close of
business on the record date, as established in the Bond Supplemental Indenture
relating thereto, preceding the interest payment date in respect thereof. The
New Bonds will be issued as fully registered bonds, without coupons, in
denominations of $1,000 and multiples thereof. The New Bonds will be
transferable at any time without any service or other charge, except transfer
taxes and other governmental charges, if any.
Except as otherwise described under the heading "Description of New Bonds --
Issuance of Additional Bonds" or in the Prospectus Supplement, the covenants
contained in the Mortgage and the New Bonds would not afford holders of the New
Bonds protection in the event of a highly-leveraged transaction involving the
Company.
REDEMPTION
The Offered Bonds are redeemable as set forth in the Prospectus Supplement
relating thereto and, subject to any qualifications or variations set forth in
any such Prospectus Supplement, are also subject to redemption, in each case at
the principal amount of the Offered Bonds to be redeemed together with accrued
interest to the date fixed for redemption, (i) in whole or in part with the
proceeds from mortgaged property of the Company taken under eminent domain by,
or otherwise sold to, a governmental body or agency; (ii) in whole or in part
with the Proceeds of Released Property, including proceeds from the sale or
other disposition (including a sale and leaseback) of property released from the
lien of the Mortgage as specified in section (b) of the second to the last
paragraph under the heading "Description of New Bonds -- Security" below; and
(iii) in whole, together with all other first mortgage bonds of the Company then
outstanding, within twelve months of certain mergers or other transactions
involving the transfer of substantially all of the property subject to the lien
of the Mortgage, as then amended. In addition, after the date and at the price
set forth in the Prospectus Supplement, Offered Bonds may be redeemed in whole
or in part with cash deposited in the replacement fund discussed below.
SECURITY
The New Bonds will rank pari passu, except as to any sinking fund or similar
fund provided for a particular series, with all bonds at any time outstanding
under the Mortgage. The Mortgage constitutes a first mortgage lien on
substantially all the fixed property owned by the Company (which does not
include a combined cycle plant or certain interests in Unit 2 of the Palo Verde
Nuclear Generating Station being leased), other than property specifically
excepted by the Mortgage. Such lien and the Company's title to certain of its
properties are subject to Excepted Encumbrances, to minor leases, defects,
irregularities, and deficiencies, and to the considerations discussed below with
respect to the Four Corners and Navajo Plant locations. The lien of the Mortgage
will also extend to all after-acquired property (other than the excepted
classes) located in the jurisdictions in which the necessary recordations or
filings have been accomplished, subject to Excepted Encumbrances and to liens
existing or placed on such property at the time of its acquisition by the
Company.
Both the Four Corners and the Navajo Plants are located on property held by
the plant participants under leases from the Navajo Tribe and easements from the
Secretary of the Interior. The leases extend from their respective effective
dates in 1966 and 1969 for terms of 50 years with rights of renewal for up
5
to 25 additional years. The easements are for 50-year terms from the same
effective dates. While the Company owns the rights conferred upon it by the
leases from the Navajo Tribe, the Company does not make any representation with
respect to the Tribe's interest in the lands leased (but is not aware of any
assertion of a contesting claim to such lands) or with respect to the
enforceability of the leases against the Tribe.
The Mortgage requires the Company to keep the property encumbered thereby as
an operating system or systems in good repair and working order, but permits the
permanent discontinuance or reduction in capacity of any such properties which,
in the judgment of the Board of Directors of the Company, is desirable in the
conduct of its business or which is ordered by a regulatory authority or which
properties are to be sold or disposed of by the Company.
When not in default under the Mortgage, the Company may obtain the release
from the lien thereof of (a) property that has become unserviceable, obsolete,
or unnecessary for use in the Company's operations, provided that it replaces
such property with, or substitutes for the same, an equal value of other
property, and (b) other property that has been sold or otherwise disposed of,
provided that the Company deposits with the Bond Trustee cash in an amount,
waives the right to issue additional bonds on the basis of retired bonds
previously issued in an amount, or utilizes as a credit net Property Additions
acquired by the Company within the preceding five years and having a fair value
(not more than Cost), equal to the fair value of the property to be released.
The Bond Trustee may, and upon request of the Company shall, cancel and
discharge the lien of the Mortgage and all indentures supplemental thereto
whenever all indebtedness secured by the Mortgage has been paid.
ISSUANCE OF ADDITIONAL BONDS
Additional bonds may be issued under the Mortgage in a principal amount equal
to (a) 60% of net Property Additions, (b) the principal amount of certain
redeemed or retired bonds previously issued, and/or (c) deposited cash, provided
that the Company's Adjusted Net Earnings over a twelve-month period are at least
two times the annual interest on all bonds to be outstanding under the Mortgage
after the issuance and on indebtedness secured by prior liens. Exceptions to
this earnings coverage requirement apply to bonds issued on the basis of
redeemed or retired bonds where the redeemed or retired bonds bore a higher rate
of interest and where certain other conditions are satisfied. In addition, the
Company's articles of incorporation allow the Company to issue additional
preferred stock when certain earnings coverage requirements are met. Exceptions
to this earnings coverage requirement apply to preferred stock issued for the
purpose of redeeming or retiring other preferred stock.
As of March 31, 1997, the Company estimates that the Mortgage and the
articles of incorporation would have allowed the Company to issue up to
approximately $1.8 billion and $1.1 billion of additional first mortgage bonds
and preferred stock, respectively.
In addition to the Mortgage restrictions on the Company's issuance of
additional bonds, the Company must obtain ACC approval before issuing equity
securities or incurring long-term debt. Existing ACC orders allow the Company to
have approximately $501 million in aggregate par value of preferred stock and
approximately $2.6 billion in principal amount of long-term debt outstanding at
any one time. The Company does not expect these provisions or authorizations to
limit the Company's ability to meet its capital requirements.
Property Additions, and in many instances redeemed or retired bonds, as well
as deposited cash, may be used for certain alternative purposes under the
Mortgage, including the release of property from the lien thereof or the
satisfaction of sinking or replacement fund requirements. The Mortgage contains
restrictions on the issuance of bonds, withdrawal of cash, or release of
property on the basis of property subject to prior liens. Property located on
leaseholds or easements (as, for example, the Four Corners and Navajo Plants)
will constitute fundable Property Additions if the leasehold or easement has an
unexpired term of, or the term is extendable at the Company's option for, at
least 30 years after the time of funding, or if the property may be removed by
the Company without compensation.
6
REPLACEMENT FUND
So long as any of the New Bonds are outstanding, the Company is required for
each calendar year to deposit with the Bond Trustee cash in a formularized
amount related to net additions to the Company's mortgaged utility plant;
however, the Company may satisfy all or any part of the requirement by utilizing
redeemed or retired bonds, net Property Additions, or property retirements. For
1996, such requirement amounted to approximately $129 million. Any cash that may
be deposited by the Company pursuant to the requirement may, upon request by the
Company, be applied to the redemption or purchase of bonds and, if not withdrawn
against Property Additions or retired bonds within five years, must be so
applied, subject in each case to any restrictions on any such redemption or
purchase as set forth in the Prospectus Supplement relating to the issue of
bonds to be redeemed or purchased.
EVENTS OF DEFAULT
The following are defaults under the Mortgage: (a) failure to pay the
principal of any bond outstanding under the Mortgage when due and payable; (b)
failure to pay interest on any bond outstanding under the Mortgage within 60
days after the same is due and payable; (c) failure to pay any installment of
any fund required to be applied to the purchase or redemption of bonds
outstanding under the Mortgage within 60 days after the same is due and payable;
(d) certain events in bankruptcy, insolvency, or reorganization; and (e) failure
to perform any other covenant of the Mortgage continuing for 90 days after
notice by the Bond Trustee or holders of 15% in principal amount of Eligible
bonds. The Mortgage allows the Bond Trustee to withhold notice of certain
defaults, not including any default in the payment of principal of, or interest
on, any bond outstanding, or in the payment of any sinking, improvement,
replacement, or purchase fund installment, if it in good faith determines that
the withholding of such notice is in the interests of the bondholders.
The holders of not less than a majority in principal amount of Eligible bonds
may direct the time, method, and place of conducting any proceeding for any
remedy available to the Bond Trustee under the Mortgage; provided, however, that
the Trustee may decline to follow any such direction under certain
circumstances, including a determination made in good faith by the Bond Trustee
that it will not be sufficiently indemnified for any expenditures, including its
own charges, in any action or proceeding so directed. The Company is required to
file with the Bond Trustee, on or before July 1 of each year, a certificate to
the effect that, except as otherwise stated therein, the Company has complied
with all of the provisions of the Mortgage and is not then in default
thereunder.
MODIFICATION OF THE MORTGAGE
The Mortgage and the rights of bondholders may be modified with the consent
of the Company, and of the Bond Trustee if deemed affected, and the vote or
assent of the holders of not less than 70% in principal amount of the Eligible
bonds, and of not less than 70% in principal amount of the Eligible bonds of any
one or more series (less than all) affected by any such modification; except
that the bondholders, without the consent of the holder of each bond affected,
have no power to (a) reduce the principal thereof, or the premium, if any, or
rate of interest thereon or otherwise modify the terms of payment of principal,
premium, or interest, or extend the maturity of any bonds, (b) permit the
creation of any lien ranking prior to or on a parity with the lien of the
Mortgage with respect to any of the mortgaged property, (c) deprive any
nonassenting bondholder of a lien upon the mortgaged property for the security
of his or her bonds, or (d) reduce the percentage of bondholders authorized to
effect any such modification.
GLOBAL SECURITIES
Some or all of the New Bonds of any series may be represented, in whole or in
part, by one or more "Global Securities" which will have an aggregate principal
amount equal to that of the New Bonds represented thereby. Each Global Security
will be registered in the name of a depositary or a nominee thereof identified
in the applicable Prospectus Supplement, will be deposited with such depositary
or nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the applicable
Bond Supplemental Indenture.
7
Notwithstanding any provision of the Mortgage or any New Bond described
herein, no Global Security may be exchanged in whole or in part for New Bonds
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any person other than the depositary for such Global
Security or any nominee of such depositary unless (i) the depositary has
notified the Company that it is unwilling or unable to continue as depositary
for such Global Security or has ceased to be qualified to act as such as
required by the Mortgage, (ii) there shall have occurred and be continuing a
default with respect to the New Bonds represented by such Global Security, or
(iii) there shall exist such circumstances, if any, in addition to or in lieu of
those described above as may be described in the applicable Bond Supplemental
Indenture and Prospectus Supplement. All securities issued in exchange for a
Global Security or any portion thereof will be registered in such names as the
depositary may direct.
As long as the depositary, or its nominee, is the registered holder of a
Global Security, the depositary or such nominee, as the case may be, will be
considered the sole owner and holder of such Global Security and the New Bonds
represented thereby for all purposes under the New Bonds and the Mortgage.
Except in the limited circumstances referred to above, owners of beneficial
interests in a Global Security will not be entitled to have such Global Security
or any New Bonds represented thereby registered in their names, will not receive
or be entitled to receive physical delivery of certificated New Bonds in
exchange therefor and will not be considered to be the owners or holders of such
Global Security or any New Bonds represented thereby for any purpose under the
New Bonds or the Mortgage. All payments of principal of and any premium and
interest on a Global Security will be made to the depositary or its nominee, as
the case may be, as the holder thereof. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to transfer beneficial
interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of New Bonds represented by the Global Security to
the accounts of its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges, and other matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
depositary from time to time. None of the Company, the Bond Trustee or any agent
of the Company or the Bond Trustee will have any responsibility or liability for
any aspect of the depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising, or reviewing any records relating to such beneficial
interests.
OTHER
The Mortgage restricts the payment of dividends on common stock of the
Company under certain conditions which have not existed in the past and do not
currently exist.
The Bond Trustee, security registrar, and paying agent under the Mortgage is
The Bank of New York. The Company maintains normal banking arrangements with The
Bank of New York, which include (i) two commitments in the aggregate principal
amount of approximately $35.7 million by The Bank of New York pursuant to
reimbursement agreements related to letters of credit issued on behalf of the
Company in connection with issuances of pollution control bonds, the proceeds of
which were made available to the Company, and (ii) a $25 million commitment by
The Bank of New York pursuant to a revolving credit agreement, none of which was
outstanding at March 31, 1997. The Bank of New York also serves as (i) trustee
for the holders of several issues of pollution control bonds issued on behalf of
the Company, (ii) trustee under the Indenture relating to the subordinated Debt
Securities (see "Description of Debt Securities" below), (iii) trustee under the
Senior Note Indenture (as defined below), (iv) investment manager for the
Company's nonunion post-retirement medical fund, and (v) custodian of
international fixed-income assets for the Company's pension plan.
8
DESCRIPTION OF SENIOR NOTES
GENERAL
The Senior Notes may be issued in one or more new series under an Indenture
(the "Senior Note Indenture") between the Company and The Bank of New York, or
any other trustee to be named, as Trustee (the "Senior Note Trustee"). The
following summary does not purport to be complete and is subject in all respects
to the provisions of, and is qualified in its entirety by reference to, the
Senior Note Indenture pursuant to which the Senior Notes are to be issued and to
the Senior Notes, the forms of which are filed, or will be filed, as exhibits to
the registration statement of which this Prospectus forms a part. Whenever
particular provisions or defined terms in the Senior Note Indenture are referred
to herein or in a Prospectus Supplement, such provisions or terms are
incorporated by reference herein or therein, as the case may be.
Until the Release Date (as defined below), the Senior Notes will be secured
by one or more series of New Bonds ("Senior Note Mortgage Bonds") issued and
delivered by the Company to the Senior Note Trustee. See "Description of Senior
Notes -- Security; Release Date." On the Release Date, the Senior Notes will
cease to be secured by Senior Note Mortgage Bonds, will become unsecured
obligations of the Company, and will rank on a parity with other unsecured
senior indebtedness of the Company, including senior Debt Securities. The Senior
Note Indenture provides that, in addition to the Senior Notes offered hereby,
additional Senior Notes may be issued thereunder, without limitation as to
aggregate principal amount, provided that, prior to the Release Date, the amount
of Senior Notes that may be issued cannot exceed the amount of first mortgage
bonds that the Company is able to issue under its Mortgage. See "Description of
New Bonds -- Issuance of Additional Bonds."
Reference is made to the Prospectus Supplement relating to any particular
issue of Offered Senior Notes for the following terms: (1) the title of such
Senior Notes; (2) any limit on the aggregate principal amount of such Senior
Notes or the series of which they are a part; (3) the date or dates on which the
principal of any of such Senior Notes will be payable; (4) the rate or rates at
which any of such Senior Notes will bear interest, if any, the date or dates
from which any such interest will accrue, the Interest Payment Dates on which
any such interest will be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date; (5) the place or places where the
principal of and any premium and interest on any of such Senior Notes will be
payable, if other than as described under "Description of Senior Notes --
Payment and Paying Agents"; (6) the period or periods within which, the price or
prices at which and the terms and conditions on which any of such Senior Notes
may be redeemed, in whole or in part, at the option of the Company; (7) the
obligation, if any, of the Company to redeem or purchase any of such Senior
Notes pursuant to any sinking fund or analogous provision or at the option of
the Holder thereof, and the period or periods within which, the price or prices
at which and the terms and conditions on which any of such Senior Notes will be
redeemed or purchased, in whole or in part, pursuant to any such obligation; (8)
the denominations in which any of such Senior Notes will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; (9) if the
amount of principal of or any premium or interest on any of such Senior Notes
may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined; (10) if other than the currency
of the United States of America, the currency, currencies, or currency units in
which the principal of or any premium or interest on any of such Senior Notes
will be payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including for purposes
of determining the principal amount deemed to be Outstanding at any time; (11)
if the principal of or any premium or interest on any of such Senior Notes is to
be payable, at the election of the Company or the Holder thereof, in one or more
currencies, or currency units other than those in which such Senior Notes are
stated to be payable, the currency, currencies or currency units in which
payment of any such amount as to which such election is made will be payable,
the periods within which and the terms and conditions upon which such election
is to be made and the amount so payable (or the manner in which such amount is
to be determined); (12) if other than the entire principal amount thereof, the
portion of the principal amount of any of such Senior Notes which will be
payable upon declaration of acceleration of the Maturity thereof; (13) if the
principal amount payable at the Stated
9
Maturity of any of such Senior Notes will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity other
than the Stated Maturity or which will be deemed to be Outstanding as of any
such date (or, in any such case, the manner in which such deemed principal
amount is to be determined); (14) if applicable, that such Senior Notes, in
whole or any specified part, are defeasible pursuant to the provisions of the
Senior Note Indenture described under "Description of Senior Notes -- Defeasance
and Covenant Defeasance; (15) whether any of such Senior Notes will be issuable
in whole or in part in the form of one or more Global Securities and, if so, the
respective Depositaries for such Global Securities, the form of any legend or
legends to be borne by any such Global Security in addition to or in lieu of the
legend referred to under "Description of Senior Notes -- Global Securities" and,
if different from those described under such caption, any circumstances under
which any such Global Security may be exchanged in whole or in part for Senior
Notes registered, and any transfer of such Global Security in whole or in part
may be registered, in the names of Persons other than the Depositary for such
Global Security or its nominee; (16) if any of such Senior Notes are to be
issued prior to the Release Date, the designation of the series of Senior Note
Mortgage Bonds to be delivered to the Senior Note Trustee as security for such
Senior Notes; (17) any addition to or change in the Events of Default applicable
to any of such Senior Notes and any change in the right of the Trustee or the
Holders to declare the principal amount of any of such Senior Notes due and
payable; (18) any addition to or change in the covenants in the Senior Note
Indenture; and (19) any other terms of such Senior Notes not inconsistent with
the provisions of the Senior Note Indenture. (Section 301).
Senior Notes, including Original Issue Discount Notes, may be sold at a
substantial discount below their principal amount. Certain special United States
federal income tax considerations (if any) applicable to Senior Notes sold at an
original issue discount may be described in the applicable Prospectus
Supplement. In addition, certain special United States federal income tax or
other considerations (if any) applicable to any Senior Notes which are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable Prospectus Supplement.
Except as otherwise described in the Prospectus Supplement, the covenants
contained in the Senior Note Indenture would not afford holders of Senior Notes
protection in the event of a highly- leveraged transaction involving the
Company.
FORM, EXCHANGE, AND TRANSFER
The Senior Notes of each series will be issuable only in fully registered
form without coupons and, unless otherwise specified in the applicable
Prospectus Supplement, in denominations of $1,000 and any integral multiple
thereof. (Section 302).
At the option of the Holder, subject to the terms of the Senior Note
Indenture and the limitations applicable to Global Securities, Senior Notes of
any series will be exchangeable for other Senior Notes of the same series, of
any authorized denomination and of like tenor and aggregate principal amount.
(Section 305).
Subject to the terms of the Senior Note Indenture and the limitations
applicable to Global Securities, Senior Notes may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the form
of transfer endorsed thereon duly executed) at the office of the Note Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be made for any registration of transfer or
exchange of Senior Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Note Registrar or
such transfer agent, as the case may be, being satisfied with the documents of
title and identity of the person making the request. The Company has appointed
the Senior Note Trustee as Note Registrar. Any transfer agent (in addition to
the Note Registrar) initially designated by the Company for any Senior Notes
will be named in the applicable Prospectus Supplement. (Section 305). The
Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the
10
office through which any transfer agent acts, except that the Company will be
required to maintain a transfer agent in each Place of Payment for the Senior
Notes of each series. (Section 1102).
If the Senior Notes of any series (or of any series and specified tenor) are
to be redeemed, the Company will not be required to (i) issue, register the
transfer of, or exchange any Senior Note of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Senior Note that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Senior Note so selected for redemption, in whole or in part, except the
unredeemed portion of any such Senior Note being redeemed in part. (Section
305).
GLOBAL NOTES
Some or all of the Senior Notes of any series may be represented, in whole or
in part, by one or more Global Notes which will have an aggregate principal
amount equal to that of the Senior Notes represented thereby. Each Global Note
will be registered in the name of a Depositary or a nominee thereof identified
in the applicable Prospectus Supplement, will be deposited with such Depositary
or nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the Senior Note
Indenture.
Notwithstanding any provision of the Senior Note Indenture or any Senior Note
described herein, no Global Note may be exchanged in whole or in part for Senior
Notes registered, and no transfer of a Global Note in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Note or any nominee of such Depositary unless (i) the Depositary has notified
the Company that it is unwilling or unable to continue as Depositary for such
Global Note or has ceased to be qualified to act as such as required by the
Senior Note Indenture, (ii) there shall have occurred and be continuing an Event
of Default with respect to the Senior Notes represented by such Global Note, or
(iii) there shall exist such circumstances, if any, in addition to or in lieu of
those described above as may be described in the applicable Prospectus
Supplement. All securities issued in exchange for a Global Note or any portion
thereof will be registered in such names as the Depositary may direct. (Sections
204 and 305).
As long as the Depositary, or its nominee, is the registered Holder of a
Global Note, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Note and the Senior Notes
represented thereby for all purposes under the Senior Notes and the Senior Note
Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Note will not be entitled to have such Global
Note or any Senior Notes represented thereby registered in their names, will not
receive or be entitled to receive physical delivery of certificated Senior Notes
in exchange therefor and will not be considered to be the owners or Holders of
such Global Note or any Senior Notes represented thereby for any purpose under
the Senior Notes or the Senior Note Indenture. All payments of principal of and
any premium and interest on a Global Note will be made to the Depositary or its
nominee, as the case may be, as the Holder thereof. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Note.
Ownership of beneficial interests in a Global Note will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Note, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of Senior Notes represented by the Global Note to the accounts
of its participants. Ownership of beneficial interests in a Global Note will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect to interests of
persons held by such participants on their behalf). Payments, transfers,
exchanges, and others matters relating to beneficial interests in a Global Note
may be subject to various policies and procedures adopted by the Depositary from
time to time. None of the Company, the Senior
11
Note Trustee or any agent of the Company or the Senior Note Trustee will have
any responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Note, or for maintaining, supervising, or
reviewing any records relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Senior Note on any Interest Payment Date will be made to the
Person in whose name such Senior Note (or one or more Predecessor Senior Notes)
is registered at the close of business on the Regular Record Date for such
interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement, principal
of and any premium and interest on the Senior Notes of a particular series will
be payable at the office of such Paying Agent or Paying Agents as the Company
may designate for such purpose from time to time, except that at the option of
the Company payment of any interest may be made by check mailed to the address
of the Person entitled thereto as such address appears in the Note Register.
Unless otherwise indicated in the applicable Prospectus Supplement, the
corporate trust office of the Senior Note Trustee in The City of New York will
be designated as the Company's sole Paying Agent for payments with respect to
Senior Notes of each series. Any other Paying Agents initially designated by the
Company for the Senior Notes of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each Place of Payment
for the Senior Notes of a particular series.
(Section 1102).
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Senior Notes which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Senior Notes thereafter may look only to the Company for payment thereof.
(Section 1103).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets "substantially as an
entirety" to any Person, and may not permit any Person to consolidate with or
merge into the Company or convey, transfer, or lease its properties and assets
substantially as an entirety to the Company, unless (a) the successor Person (if
any) is a corporation, partnership, trust or other entity organized and validly
existing under the laws of any domestic jurisdiction and (i) assumes the
Company's obligations on the Senior Notes and under the Senior Note Indenture,
and (ii) if such consolidation, merger, conveyance, transfer, or lease occurs
prior to the Release Date, assumes the Company's obligations under the Senior
Note Mortgage Bonds and under the Mortgage; (b) immediately after giving effect
to the transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing and (iii) certain other conditions are met. The term
"substantially as an entirety" means 50% or more of the total assets of the
Company as shown on the Company's consolidated balance sheet as of the end of
the calendar year immediately preceding the day of the year in which such
determination is made. (Section 901).
SECURITY; RELEASE DATE
Until the Release Date (as defined below), the Senior Notes will be secured
by one or more series of Senior Note Mortgage Bonds issued and delivered by the
Company to the Senior Note Trustee (see "Description of the New Bonds"). Upon
the issuance of a series of Senior Notes prior to the Release Date, the Company
will simultaneously issue and deliver to the Senior Note Trustee, as security
for such series of Senior Notes, a series of Senior Note Mortgage Bonds that
will have the same stated rate or
12
rates of interest (or interest calculated in the same manner), Interest Payment
Dates, Stated Maturity and redemption provisions, and will be in the same
aggregate principal amount as the series of the Senior Notes being issued.
(Sections 401-403). Payments by the Company to the Senior Note Trustee of
principal of, premium and interest on, a series of Senior Note Mortgage Bonds
will be applied by the Senior Note Trustee to satisfy the Company's obligations
with respect to principal of, premium and interest on, the related series of
Senior Notes. (Section 312). THE RELEASE DATE WILL BE THE DATE THAT ALL FIRST
MORTGAGE BONDS ("FIRST MORTGAGE BONDS") OF THE COMPANY ISSUED AND OUTSTANDING
UNDER THE MORTGAGE, OTHER THAN SENIOR NOTE MORTGAGE BONDS, HAVE BEEN RETIRED
(AT, BEFORE OR AFTER THE MATURITY THEREOF) THROUGH PAYMENT, REDEMPTION, OR
OTHERWISE. ON THE RELEASE DATE, THE SENIOR NOTE TRUSTEE WILL DELIVER TO THE
COMPANY FOR CANCELLATION ALL SENIOR NOTE MORTGAGE BONDS AND THE COMPANY WILL
CAUSE THE SENIOR NOTE TRUSTEE TO PROVIDE NOTICE TO ALL HOLDERS OF SENIOR NOTES
OF THE OCCURRENCE OF THE RELEASE DATE. AS A RESULT, ON THE RELEASE DATE, THE
SENIOR NOTE MORTGAGE BONDS WILL CEASE TO SECURE THE SENIOR NOTES, AND THE SENIOR
NOTES WILL BECOME UNSECURED GENERAL OBLIGATIONS OF THE COMPANY. (SECTION 407)
SEE "DESCRIPTION OF SENIOR NOTES -- DEFEASANCE AND COVENANT DEFEASANCE --
DEFEASANCE AND DISCHARGE" FOR A DISCUSSION OF ANOTHER SITUATION IN WHICH
OUTSTANDING SENIOR NOTES WOULD NOT BE SECURED BY SENIOR NOTE MORTGAGE BONDS.
Each series of Senior Note Mortgage Bonds will be a series of New Bonds, all of
which are secured by a lien on certain property owned by the Company. See
"Description of New Bonds -- Security." In certain circumstances prior to the
Release Date, the Company is permitted to reduce the aggregate principal amount
of a series of Senior Note Mortgage Bonds held by the Senior Note Trustee, but
in no event to an amount lower than the aggregate outstanding principal amount
of the series of Senior Notes initially issued contemporaneously with such
Senior Note Mortgage Bonds. (Section 409). Following the Release Date, the
Company will cause the Mortgage to be closed and the Company will not issue any
additional First Mortgage Bonds under the Mortgage. (Section 403). While the
Company will be precluded after the Release Date from issuing additional First
Mortgage Bonds, the Company will not be precluded under the Senior Note
Indenture or the Senior Notes from issuing or assuming other secured debt, or
incurring liens on its property, unless otherwise indicated in the applicable
Prospectus Supplement.
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the Senior
Note Indenture with respect to Senior Notes of any series: (a) failure to pay
principal of or any premium on any Senior Note of that series when due,
continued for five days; (b) failure to pay any interest on any Senior Notes of
that series when due, continued for sixty days; (c) failure to deposit any
sinking fund payment, when due, in respect of any Senior Note of that series;
(d) failure to perform any other covenant of the Company in the Senior Note
Indenture (other than a covenant included in the Senior Note Indenture solely
for the benefit of a series other than that series), continued for 90 days after
written notice has been given by the Senior Note Trustee, or the Holders of a
majority in principal amount of the Outstanding Senior Notes of that series, as
provided in the Senior Note Indenture; (e) prior to the Release Date, the
occurrence of a Default under the Mortgage (see "Description of the Bonds --
Events of Default"), of which the Trustee under the Mortgage, the Company or the
Holders of at least 25% in aggregate principal amount of the outstanding Senior
Notes have given written notice thereof to the Senior Note Trustee; and (f)
certain events in bankruptcy, insolvency or reorganization. (Section 601).
If an Event of Default (other than an Event of Default described in clause
(f) above) with respect to the Senior Notes of any series at the time
Outstanding shall occur and be continuing, either the Senior Note Trustee or the
Holders of a majority in principal amount of the Outstanding Senior Notes of
that series by notice as provided in the Senior Note Indenture may declare the
principal amount of the Senior Notes of that series (or, in the case of any
Senior Note that is an Original Issue Discount Note or the principal amount of
which is not then determinable, such portion of the principal amount of such
Senior Note, or such other amount in lieu of such principal amount, as may be
specified in the terms of such Senior Note) to be due and payable immediately.
If an Event of Default described in clause (f) above with respect to the Senior
Notes of any series at the time Outstanding shall occur, the principal amount of
all the Senior Notes of that series (or, in the case of any such Original Issue
Discount Note or other Senior
13
Note, such specified amount) will automatically, and without any action by the
Senior Note Trustee or any Holder, become immediately due and payable. After any
such acceleration, but before (i) a judgment or decree based on acceleration or
(ii) the Senior Note Trustee's receipt from the Trustee under the Mortgage of a
notice of acceleration of Senior Note First Mortgage Bonds, such acceleration
will be automatically waived and rescinded if all Events of Default, other than
the non-payment of accelerated principal (or other specified amount), have been
cured or waived as provided in the Indenture. (Section 602). For information as
to waiver of defaults, see "Modification and Waiver."
Subject to the provisions of the Senior Note Indenture relating to the duties
of the Senior Note Trustee in case an Event of Default shall occur and be
continuing, the Senior Note Trustee will be under no obligation to exercise any
of its rights or powers under the Senior Note Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to the
Senior Note Trustee reasonable indemnity. (Section 703). Subject to such
provisions for the indemnification of the Senior Note Trustee, the Holders of a
majority in principal amount of the Outstanding Senior Notes of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Senior Note Trustee, or exercising any trust or
power conferred on the Senior Note Trustee, with respect to the Senior Notes of
that series. (Section 612).
No Holder of a Senior Note of any series will have any right to institute any
proceeding with respect to the Senior Note Indenture, or for the appointment of
a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Senior Note Trustee written notice of a
continuing Event of Default with respect to the Senior Notes of that series,
(ii) the Holders of at least 25% in aggregate principal amount of the
Outstanding Senior Notes of that series have made written request, and such
Holder or Holders have offered reasonable indemnity, to the Senior Note Trustee
to institute such proceeding as trustee, and (iii) the Senior Note Trustee has
failed to institute such proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Senior Notes of that
series a direction inconsistent with such request, within 60 days after such
notice, request and offer. (Section 607). However, such limitations do not apply
to a suit instituted by a Holder of a Senior Note for the enforcement of payment
of the principal of or any premium or interest on such Senior Note on or after
the applicable due date specified in such Senior Note. (Section 608).
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1104).
MODIFICATION AND WAIVER
Modifications and amendments of the Senior Note Indenture may be made by the
Company and the Senior Note Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Senior Notes of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Senior Note affected thereby, (a) change the Stated Maturity of the
principal of, or any instalment of principal of or interest on, any Senior Note,
(b) reduce the principal amount of, or any premium or interest on, any Senior
Note, (c) reduce the amount of principal of an Original Issue Discount Note or
any other Senior Note payable upon acceleration of the Maturity thereof, (d)
change the place or currency of payment of principal of, or any premium or
interest on, any Senior Note, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Senior Note, (f) prior to
the Release Date, (i) impair the interest of the Senior Note Trustee in the
Senior Note Mortgage Bonds, (ii) reduce the principal amount of any series of
Senior Note Mortgage Bonds to an amount less than the principal amount of the
related Series of Notes, or (iii) alter the payment provisions of the Senior
Note Mortgage Bonds in a manner adverse to the Holders of the Notes, or (g)
reduce the percentage in principal amount of Outstanding Senior Notes of any
series, the consent of whose Holders is required for modification or amendment
of the Senior Note Indenture, reduce the percentage in principal amount of
Outstanding Senior Notes of any series necessary for waiver of compliance with
certain provisions of the Senior Note Indenture or for waiver of certain
defaults or modify such provisions with respect to modification and waiver.
(Section 1002).
14
The Holders of a majority in principal amount of the Outstanding Senior Notes
of any series may waive compliance by the Company with certain restrictive
provisions of the Senior Note Indenture. (Section 1108). The Holders of a
majority in principal amount of the Outstanding Senior Notes of any series may
waive any past default under the Senior Note Indenture, except a default in the
payment of principal, premium, or interest and certain covenants and provisions
of the Senior Note Indenture which cannot be amended without the consent of the
Holder of each Outstanding Senior Note of such series affected. (Section 613).
The Senior Note Indenture provides that in determining whether the Holders of
the requisite principal amount of the Outstanding Senior Notes have given or
taken any direction, notice, consent, waiver, or other action under the Senior
Note Indenture as of any date, (i) the principal amount of an Original Issue
Discount Note that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Senior Note is not
determinable (for example, because it is based on an index), the principal
amount of such Senior Note deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Senior Note and (iii) the
principal amount of a Senior Note denominated in one or more foreign currencies
or currency units that will be deemed to be Outstanding will be the U.S. dollar
equivalent, determined as of such date in the manner prescribed for such Senior
Note, of the principal amount of such Senior Note (or, in the case of a Senior
Note described in clause (i) or (ii) above, of the amount described in such
clause). Certain Senior Notes, including those for whose payment or redemption
money has been deposited or set aside in trust for the Holders and those that
have been fully defeased pursuant to Section 1402, will not be deemed to be
Outstanding. (Section 101).
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Senior Notes of any series entitled to give or take any direction,
notice, consent, waiver, or other action under the Senior Note Indenture, in the
manner and subject to the limitations provided in the Senior Note Indenture. In
certain limited circumstances, the Senior Note Trustee will be entitled to set a
record date for action by Holders. If a record date is set for any action to be
taken by Holders of a particular series, such action may be taken only by
persons who are Holders of Outstanding Senior Notes of that series on the record
date. To be effective, such action must be taken by Holders of the requisite
principal amount of such Senior Notes within a specified period following the
record date. For any particular record date, this period will be 180 days or
such other shorter period as may be specified by the Company (or the Senior Note
Trustee, if it set the record date), and may be shortened or lengthened (but not
beyond 180 days) from time to time. (Section 104).
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1402, relating to defeasance and discharge of indebtedness, or Section 1403,
relating to defeasance of certain restrictive covenants in the Senior Note
Indenture, applied to the Senior Notes of any series, or to any specified part
of a series. (Section 1401).
DEFEASANCE AND DISCHARGE. The Senior Note Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1402 applied to any
Senior Notes, the Company will be discharged from all its obligations with
respect to such Senior Notes (except for certain obligations to exchange or
register the transfer of Senior Notes, to replace stolen, lost or mutilated
Senior Notes, to maintain paying agencies and to hold moneys for payment in
trust) upon the deposit in trust for the benefit of the Holders of such Senior
Notes of money or U.S. Government Obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
any premium and interest on such Senior Notes on the respective Stated
Maturities in accordance with the terms of the Senior Note Indenture and such
Senior Notes. UPON SUCH DEFEASANCE AND DISCHARGE, THE SENIOR NOTE TRUSTEE WILL
DELIVER TO THE COMPANY FOR CANCELLATION ALL SENIOR NOTE MORTGAGE BONDS SECURING
SUCH SENIOR NOTES, AFTER WHICH TIME SUCH SENIOR NOTES WILL NO LONGER BE SECURED
BY SENIOR NOTE
15
MORTGAGE BONDS. Such defeasance and discharge may occur only if, among other
things, the Company has delivered to the Senior Note Trustee an Opinion of
Counsel to the effect that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that Holders of such
Senior Notes will not recognize gain or loss for federal income tax purposes as
a result of such deposit, defeasance, and discharge and will be subject to
federal income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge were not
to occur. (Sections 1402 and 1404).
DEFEASANCE OF CERTAIN COVENANTS. The Senior Note Indenture provides that,
upon the Company's exercise of its option (if any) to have Section 1403 applied
to any Senior Notes, the Company may omit to comply with certain restrictive
covenants that may be described in the applicable Prospectus Supplement, and the
occurrence of certain Events of Default, which are described above in clause (d)
(with respect to such restrictive covenants) under "Description of Senior Notes
- -- Events of Default" and any that may be described in the applicable Prospectus
Supplement, will be deemed not to be or result in an Event of Default will cease
to be effective, in each case with respect to such Senior Notes. The Company, in
order to exercise such option, will be required to deposit, in trust for the
benefit of the Holders of such Senior Notes, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Senior
Notes on the respective Stated Maturities in accordance with the terms of the
Senior Note Indenture and such Senior Notes. The Company will also be required,
among other things, to deliver to the Trustee an Opinion of Counsel to the
effect that Holders of such Senior Notes will not recognize gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Senior Notes and such Senior Notes
were declared due and payable because of the occurrence of any Event of Default,
the amount of money and U.S. Government Obligations so deposited in trust would
be sufficient to pay amounts due on such Senior Notes at the time of their
respective Stated Maturities but may not be sufficient to pay amounts due on
such Senior Notes upon any acceleration resulting from such Event of Default. In
such case, the Company would remain liable for such payments.
(Sections 1403 and 1404).
NOTICES
Notices to Holders of Senior Notes will be given by mail to the addresses of
such Holders as they may appear in the Note Register. (Sections 101 and 106).
TITLE
The Company, the Senior Note Trustee, and any agent of the Company or the
Senior Note Trustee may treat the Person in whose name a Senior Note is
registered as the absolute owner thereof (whether or not such Senior Note may be
overdue) for the purpose of making payment and for all other purposes.
(Section 308).
GOVERNING LAW
The Senior Note Indenture and the Senior Notes will be governed by, and
construed in accordance with, the law of the State of New York. (Section
112).
REGARDING THE SENIOR NOTE TRUSTEE
The Senior Note Trustee is The Bank of New York. The Company maintains normal
banking arrangements with The Bank of New York, which include (i) two
commitments in the aggregate principal amount of approximately $35.7 million by
The Bank of New York pursuant to reimbursement agreements related to letters of
credit issued on behalf of the Company in connection with issuances of pollution
control bonds, the proceeds of which were made available to the Company, and
(ii) a $25 million
16
commitment by The Bank of New York pursuant to a revolving credit agreement,
none of which was outstanding at March 31, 1997. The Bank of New York also
serves as (i) trustee under the Mortgage, (ii) trustee for the holders of
several issues of pollution control bonds issued on behalf of the Company, (iii)
trustee under the Company's Indenture relating to subordinated Debt Securities
(see below), (iv) investment manager for the Company's nonunion post-retirement
medical fund, and (v) custodian of international fixed-income assets for the
Company's pension plan.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may be issued in one or more new series under an
Indenture between the Company and (i) The Bank of New York, in the case of
subordinated Debt Securities, and (ii) The Chase Manhattan Bank, in the case of
senior Debt Securities, or any other trustees to be named, as Trustee (each, a
"Trustee"). The following summary does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the Indentures pursuant to which the subordinated and senior Debt
Securities are to be issued and to the Debt Securities, the forms of which are
filed, or will be filed, as exhibits to the registration statement of which this
Prospectus forms a part. Whenever particular provisions or defined terms in such
documents are referred to herein or in a Prospectus Supplement, such provisions
or terms are incorporated by reference herein or therein, as the case may be.
The Debt Securities will be unsecured obligations of the Company. Separate
Indentures will be used for senior Debt Securities and subordinated Debt
Securities, respectively, although the description of the Indenture herein,
except as specifically stated otherwise, applies to both Indentures.
Reference is made to the Prospectus Supplement relating to any particular
issue of Offered Debt Securities for the following terms: (1) the title of such
Debt Securities; (2) any limit on the aggregate principal amount of such Debt
Securities or the series of which they are a part; (3) the date or dates on
which the principal of any of such Debt Securities will be payable; (4) the rate
or rates at which any of such Debt Securities will bear interest, if any, the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date; (5) the place or places
where the principal of and any premium and interest on any of such Debt
Securities will be payable, if other than as described under "Description of
Debt Securities -- Payment and Paying Agents"; (6) the period or periods within
which, the price or prices at which and the terms and conditions on which any of
such Debt Securities may be redeemed, in whole or in part, at the option of the
Company; (7) the obligation, if any, of the Company to redeem or purchase any of
such Debt Securities pursuant to any sinking fund or analogous provision or at
the option of the Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions on which any of such Debt
Securities will be redeemed or purchased, in whole or in part, pursuant to any
such obligation; (8) the denominations in which any of such Debt Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof; (9) if the amount of principal of or any premium or interest on any of
such Debt Securities may be determined with reference to an index or pursuant to
a formula, the manner in which such amounts will be determined; (10) if other
than the currency of the United States of America, the currency, currencies, or
currency units in which the principal of or any premium or interest on any of
such Debt Securities will be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any
purpose, including for purposes of determining the principal amount deemed to be
Outstanding at any time; (11) if the principal of or any premium or interest on
any of such Debt Securities is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies, or currency units other than
those in which such Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of any such amount as to which
such election is made will be payable, the periods within which and the terms
and conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount is to be determined); (12) if other than the
entire principal amount thereof, the portion of the principal amount of any of
such Debt Securities which will be payable upon declaration of acceleration of
the Maturity thereof; (13) if the principal amount payable at the Stated
Maturity of any of such Debt Securities will not be determinable
17
as of any one or more dates prior to the Stated Maturity, the amount which will
be deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable upon any
Maturity other than the Stated Maturity or which will be deemed to be
Outstanding as of any such date (or, in any such case, the manner in which such
deemed principal amount is to be determined); (14) if applicable, that such Debt
Securities, in whole or any specified part, are defeasible pursuant to the
provisions of the Indenture described under "Description of Debt Securities --
Defeasance and Covenant Defeasance -- Defeasance and Discharge" or "Description
of Debt Securities -- Defeasance and Covenant Defeasance -- Covenant
Defeasance," or under both such captions; (15) whether any of such Debt
Securities will be issuable in whole or in part in the form of one or more
Global Securities and, if so, the respective Depositaries for such Global
Securities, the form of any legend or legends to be borne by any such Global
Security in addition to or in lieu of the legend referred to under "Description
of Debt Securities -- Global Securities" and, if different from those described
under such caption, any circumstances under which any such Global Security may
be exchanged in whole or in part for Debt Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the
names of Persons other than the Depositary for such Global Security or its
nominee; (16) any addition to or change in the Events of Default applicable to
any of such Debt Securities and any change in the right of the Trustee or the
Holders to declare the principal amount of any of such Debt Securities due and
payable; (17) any addition to or change in the covenants in the Indenture; and
(18) any other terms of such Debt Securities not inconsistent with the
provisions of the Indenture. (Section 301).
Debt Securities, including Original Issue Discount Securities, may be sold at
a substantial discount below their principal amount. Certain special United
States federal income tax considerations (if any) applicable to Debt Securities
sold at an original issue discount may be described in the applicable Prospectus
Supplement. In addition, certain special United States federal income tax or
other considerations (if any) applicable to any Debt Securities which are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable Prospectus Supplement.
Except as otherwise described in the Prospectus Supplement, the covenants
contained in the Indenture would not afford holders of Debt Securities
protection in the event of a highly-leveraged transaction involving the Company.
SUBORDINATION
The Indenture relating to the subordinated Debt Securities provides that,
unless otherwise provided in a supplemental indenture or a Board Resolution, the
Debt Securities will be subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Company, whether outstanding as of the
date of the Indenture or thereafter incurred. (Section 1401). The balance of the
information under this "Subordination" heading assumes that the relevant
supplemental indenture or Board Resolution results in the corresponding series
of Debt Securities being subordinated obligations of the Company.
No payment of principal of (including redemption and sinking fund payments),
premium, if any, or interest on, the subordinated Debt Securities may be made if
any Senior Debt is not paid when due, any applicable grace period with respect
to such default has ended and such default has not been cured or waived, or if
the maturity of any Senior Debt has been accelerated because of a default.
(Section 1402). Upon any distribution of assets of the Company to creditors upon
any dissolution, winding-up, liquidation or reorganization, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
principal of, and premium, if any, and interest due or to become due on, all
Senior Debt must be paid in full before the holders of the subordinated Debt
Securities are entitled to receive or retain any payment. (Section 1403). The
rights of the holders of the subordinated Debt Securities will be subordinated
to the rights of the holders of Senior Debt to receive payments or distributions
applicable to Senior Debt until all amounts owing on the Debt Securities are
paid in full.
(Section 1404).
The term "Senior Debt" shall mean the principal of, premium, if any, interest
on and any other payment due pursuant to any of the following, whether
outstanding at the date of execution of the Indenture or thereafter incurred,
created or assumed:
18
(a) all indebtedness of the Company evidenced by notes, debentures, bonds, or
other securities sold by the Company for money, including all first mortgage
bonds of the Company outstanding from time to time;
(b) all indebtedness of others of the kinds described in the preceding clause
(a) assumed by or guaranteed in any manner by the Company; and
(c) all renewals, extensions, or refundings of indebtedness of the kinds
described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Debt Securities. (Section 101).
The Indenture does not limit the aggregate amount of Senior Debt that the
Company may issue. As of March 31, 1997, outstanding Senior Debt and
subordinated debt of the Company aggregated approximately $2.0 billion and $75
million, respectively. Any Senior Notes issued by the Company would constitute
Senior Debt, whether before or after the Release Date. See "Description of
Senior Notes -- Security; Release Date."
FORM, EXCHANGE, AND TRANSFER
The Debt Securities of each series will be issuable only in fully registered
form without coupons and, unless otherwise specified in the applicable
Prospectus Supplement, in denominations of $1,000 and any integral multiple
thereof. (Section 302).
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of any series will
be exchangeable for other Debt Securities of the same series, of any authorized
denomination and of like tenor and aggregate principal amount.
(Section 305).
Subject to the terms of the Indenture and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305).
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified tenor)
are to be redeemed, the Company will not be required to (i) issue, register the
transfer of, or exchange any Debt Security of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Debt Security that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Debt Security so selected for redemption, in whole or in part, except the
unredeemed portion of any such Debt Security being redeemed in part. (Section
305).
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in whole
or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities
19
represented thereby. Each Global Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indenture.
Notwithstanding any provision of the Indenture or any Debt Security described
herein, no Global Security may be exchanged in whole or in part for Debt
Securities registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or any nominee of such Depositary unless (i) the Depositary has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or has ceased to be qualified to act as such as
required by the Indenture, (ii) there shall have occurred and be continuing an
Event of Default with respect to the Debt Securities represented by such Global
Security or (iii) there shall exist such circumstances, if any, in addition to
or in lieu of those described above as may be described in the applicable
Prospectus Supplement. All securities issued in exchange for a Global Security
or any portion thereof will be registered in such names as the Depositary may
direct. (Sections 204 and 305).
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the Indenture.
All payments of principal of and any premium and interest on a Global Security
will be made to the Depositary or its nominee, as the case may be, as the Holder
thereof. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a Global
Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges, and others matters relating to beneficial interests in a
Global Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Trustee or any agent of
the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising, or reviewing any records relating to such beneficial
interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement, principal
of and any premium and interest on the Debt Securities of a particular series
will be payable at the office of such Paying Agent or Paying Agents as the
Company may designate for such purpose from time to time, except that at the
20
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Trustee in The City of New York will be
designated as the Company's sole Paying Agent for payments with respect to Debt
Securities of each series. Any other Paying Agents initially designated by the
Company for the Debt Securities of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each Place of Payment
for the Debt Securities of a particular series. (Section 1002).
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company may not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and may not permit any Person to consolidate with or merge into the
Company or convey, transfer, or lease its properties and assets substantially as
an entirety to the Company, unless (i) the successor Person (if any) is a
corporation, partnership, trust or other entity organized and validly existing
under the laws of any domestic jurisdiction and assumes the Company's
obligations on the Debt Securities and under the Indenture, (ii) immediately
after giving effect to the transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing and (iii) certain other conditions are met.
(Section 801).
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the Indenture
with respect to Debt Securities of any series: (a) failure to pay principal of
or any premium on any Debt Security of that series when due; (b) failure to pay
any interest on any Debt Securities of that series when due, continued for 30
days; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of that series; (d) failure to perform any other covenant of
the Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series other than that series), continued for 90
days after written notice has been given by the Trustee, or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series,
as provided in the Indenture; and (e) certain events in bankruptcy, insolvency
or reorganization. (Section 501).
If an Event of Default (other than an Event of Default described in clause
(e) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Security or the principal amount of
which is not then determinable, such portion of the principal amount of such
Debt Security, or such other amount in lieu of such principal amount, as may be
specified in the terms of such Debt Security) to be due and payable immediately.
If an Event of Default described in clause (e) above with respect to the Debt
Securities of any series at the time Outstanding shall occur, the principal
amount of all the Debt Securities of that series (or, in the case of any such
Original Issue Discount Security or other Debt Security, such specified amount)
will automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. After any such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if
21
all Events of Default, other than the non-payment of accelerated principal (or
other specified amount), have been cured or waived as provided in the Indenture.
(Section 502). For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity. (Section 603). Subject
to such provisions for the indemnification of the Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt Securities of that
series. (Section 512).
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer. (Section 507).
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security. (Section 508).
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than 66 2/3% in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any instalment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or interest on, any
Debt Security, (c) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security, (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security,
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture, reduce the percentage in principal amount of
Outstanding Debt Securities of any series necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults or
modify such provisions with respect to modification and waiver. (Section 902).
The Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of any series may waive compliance by the Company
with certain restrictive provisions of the Indenture. (Section 1008). The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive any past default under the Indenture, except a default in
the payment of principal, premium, or interest and certain covenants and
provisions of the Indenture which cannot be amended without the consent of the
Holder of each Outstanding Debt Security of such series affected. (Section 513).
22
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver, or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue Discount
Security that will be deemed to be Outstanding will be the amount of the
principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such date, the
principal amount payable at the Stated Maturity of a Debt Security is not
determinable (for example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of such date will be an
amount determined in the manner prescribed for such Debt Security and (iii) the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be the
U.S. dollar equivalent, determined as of such date in the manner prescribed for
such Debt Security, of the principal amount of such Debt Security (or, in the
case of a Debt Security described in clause (i) or (ii) above, of the amount
described in such clause). Certain Debt Securities, including those for whose
payment or redemption money has been deposited or set aside in trust for the
Holders and those that have been fully defeased pursuant to Section 1302, will
not be deemed to be Outstanding. (Section 101).
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver, or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such other
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104).
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants in the Indenture,
applied to the Debt Securities of any series, or to any specified part of a
series. (Section 1301).
DEFEASANCE AND DISCHARGE. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or register
the transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold moneys for payment in trust)
upon the deposit in trust for the benefit of the Holders of such Debt Securities
of money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Company
has received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Debt Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit, defeasance,
and discharge and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge were not to occur. (Sections 1302 and 1304).
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain restrictive
covenants that may be described in the applicable Prospectus Supplement, and the
occurrence of certain Events of Default, which are described above in clause (d)
(with respect to such
23
restrictive covenants) under "Events of Default" and any that may be described
in the applicable Prospectus Supplement, will be deemed not to be or result in
an Event of Default and the provisions of Article Fourteen relating to
subordination (included in the Indenture relating to subordinated Debt
Securities) will cease to be effective, in each case with respect to such Debt
Securities. The Company, in order to exercise such option, will be required to
deposit, in trust for the benefit of the Holders of such Debt Securities, money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. The Company
will also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not recognize
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 1303 and 1304).
NOTICES
Notices to Holders of Debt Securities will be given by mail to the addresses
of such Holders as they may appear in the Security Register. (Sections 101 and
106).
TITLE
The Company, the Trustee, and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308).
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 112).
REGARDING THE TRUSTEES
The Trustee under the Indenture relating to the subordinated Debt Securities
is The Bank of New York. The Company maintains normal banking arrangements with
The Bank of New York, which include (i) two commitments in the aggregate
principal amount of approximately $35.7 million by The Bank of New York pursuant
to reimbursement agreements related to letters of credit issued on behalf of the
Company in connection with issuances of pollution control bonds, the proceeds of
which were made available to the Company, and (ii) a $25 million commitment by
The Bank of New York pursuant to a revolving credit agreement, none of which was
outstanding at March 31, 1997. The Bank of New York also serves as (i) trustee
under the Mortgage (see "Description of New Bonds"), (ii) trustee for the
holders of several issues of pollution control bonds issued on behalf of the
Company, (iii) trustee under the Senior Note Indenture (see "Description of
Senior Notes"), (iv) investment manager for the Company's nonunion
post-retirement medical fund and (v) custodian of international fixed-income
assets for the Company's pension plan. The Trustee under the Indenture relating
to the senior Debt Securities is The Chase Manhattan Bank. The Company maintains
normal banking arrangements with The Chase Manhattan Bank. The Chase Manhattan
Bank also (i) serves as trustee for the holders of several series of bonds
secured by, among other things, the Company's payments under its Palo Verde
Nuclear Generating Station leases (these bonds were issued by a party
unaffiliated with the Company), (ii) serves as an issuing and paying agent with
respect to the Company's commercial paper program, and (iii) has a
24
commitment to lend the Company up to $55 million under a revolving credit
agreement, $25 million of which was outstanding as of March 31, 1997. In
addition, an affiliate of The Chase Manhattan Bank is the lessor with respect to
a lease with the Company relating to the sale and leaseback of a portion of Unit
2 of the Palo Verde Nuclear Generating Station.
PLAN OF DISTRIBUTION
The Company intends to sell up to $150 million in aggregate principal amount
of the Offered Securities to or through underwriters or dealers, and may also
sell the Offered Securities directly to other purchasers or through agents, as
described in the Prospectus Supplement relating to an issue of Offered
Securities.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of the Offered Securities, underwriters may
receive compensation from the Company or from purchasers of Offered Securities
for whom they may act as agents in the form of discounts, concessions, or
commissions. Underwriters may sell Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions, or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers, and agents that participate
in the distribution of Offered Securities may be deemed to be underwriters, and
any discounts or commissions received by them from the Company and any profit on
the resale of Offered Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933 (the "1933 Act"). Any
such person who may be deemed to be an underwriter will be identified, and any
such compensation received from the Company will be described, in the Prospectus
Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of the Offered
Securities may be entitled to indemnification by the Company against certain
liabilities, including liabilities under the 1933 Act.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Company's 1996 Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Company by Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004,
and, it is currently anticipated, for any underwriters of Securities by Sullivan
& Cromwell, 444 South Flower Street, Los Angeles, California 90071. In giving
their opinions, Sullivan & Cromwell and Snell & Wilmer L.L.P. may rely as to
matters of New Mexico law upon the opinion of Keleher & McLeod, P.A., 1200
Public Service Building, Albuquerque, New Mexico 87102, Sullivan & Cromwell may
rely as to all matters of Arizona law upon the opinion of Snell & Wilmer L.L.P.,
and Snell & Wilmer L.L.P. may rely as to all matters of New York law upon the
opinion of Sullivan & Cromwell.
25
=============================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR
TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE SUCH DATE.
TABLE OF CONTENTS
PAGE
----
Available Information ............................... 2
Incorporation of Certain Documents by
Reference .......................................... 2
Selected Information ................................ 3
The Company ......................................... 4
Application of Proceeds ............................. 4
Earnings Ratios ..................................... 4
Securities .......................................... 4
Description of New Bonds ............................ 4
Description of Senior Notes ......................... 9
Description of Debt Securities ...................... 17
Plan of Distribution ................................ 25
Experts ............................................. 25
Legal Opinions ...................................... 25
=============================================================
=============================================================
$150,000,000
ARIZONA PUBLIC SERVICE
COMPANY
FIRST MORTGAGE BONDS
SENIOR NOTES
DEBT SECURITIES
-----------------
APS
-----------------
=============================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission registration fee ............... $37,879
Printing, engraving, and postage expenses .......................... 45,000*
Legal fees ......................................................... 125,000*
Accounting fees .................................................... 30,000*
Rating Agency fees ................................................. 105,000*
Trustee's fees and expenses ........................................ 30,000*
Blue Sky fees and expenses ......................................... 10,000*
Miscellaneous ...................................................... 2,121*
-------
Total ............................................................ $385,000
=======
- ------------------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The law of Arizona permits extensive indemnification of present and former
directors, officers, employees or agents of an Arizona corporation, whether or
not authority for such indemnification is contained in the indemnifying
corporation's articles of incorporation or bylaws. Specific authority for
indemnification of present and former directors and officers, under certain
circumstances, is contained in Article Fifth of the Company's Articles of
Incorporation. In addition, Section 7.01 of the Company's bylaws provides that
the Company will indemnify present and former directors and officers to the
fullest extent permitted by Arizona law. Under Arizona law, in order for a
corporation to provide indemnification, a disinterested majority of the
corporation's board of directors, independent legal counsel, a court or the
shareholders must find that the director, officer, employee or agent acted, or
failed to act, in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reason to believe his conduct was
unlawful. Statutory indemnification is permissive, except in the event of a
successful defense, when a director, officer, employee or agent must be
indemnified against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection therewith. Indemnification is permitted with
respect to expenses, judgments, fines, and amounts paid in settlement by such
persons.
On January 1, 1996, the new Arizona Business Corporation Act (the "ABCA")
became effective. The ABCA permits extensive indemnification of present and
former directors, officers, employees, or agents of an Arizona corporation,
whether or not authority for such indemnification is contained in the
indemnifying corporation's articles of incorporation or bylaws. Under the ABCA,
in order for a corporation to provide indemnification, a majority of the
corporation's disinterested directors, independent legal counsel, or the
shareholders must find that the conduct of the individual to be indemnified was
in good faith and that the individual reasonably believed that the conduct was
in the corporation's best interests (in the case of conduct in an "official
capacity" with the corporation) or that the conduct was at least not opposed to
the corporation's best interests (in all other cases). In the case of any
criminal proceeding, the finding must be to the effect that the individual had
no reasonable cause to believe the conduct was unlawful. Indemnification is
permitted with respect to expenses, judgements, fines, and amounts paid in
settlement by such individuals.
Indemnification under the ABCA is permissive, except in the event of a
successful defense, in which case a director, officer, employee, or agent must
be indemnified against reasonable expenses, including attorneys' fees, incurred
in connection with the proceeding. In addition, the ABCA requires Arizona
corporations to indemnify any "outside director" (a director who is not an
officer, employee, or holder of five percent or more of any class of the
corporation's stock) against liability unless (i) the corporation's articles of
incorporation limit such indemnification, (ii) the outside director is adjudged
liable in a proceeding by or in the right of the corporation or in any other
proceeding charging improper personal
II-1
benefit to the director, or (iii) a court determines, before payment to the
outside director, that the director failed to meet the standards of conduct
described in the preceding paragraph. A court may also order that an individual
be indemnified if the court finds that the individual is fairly and reasonably
entitled to indemnification in light of all of the relevant circumstances,
whether or not the individual has met the standards of conduct in this and the
preceding paragraph.
In connection with the offering made by the prospectus which is a part of
this registration statement, as it may be amended or supplemented, the
underwriters of the Offered Securities, pursuant to the relevant underwriting
agreement, will severally agree to indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed this registration
statement, and each person, if any, who controls the Company within the meaning
of the Securities Act of 1933, as amended (the "Act"), against certain losses,
claims, damages or liabilities, including liabilities under the Act, that arise
out of or are based upon written information furnished by such underwriters to
the Company for use in this registration statement or in such prospectus.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Company out of its foregoing indemnification provisions, subject
to certain exclusions and to the policy limits.
ITEM 16. LIST OF EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
1.1 Form of Underwriting Agreement for New Bonds.
1.2 Form of Underwriting Agreement for Debt Securities.
1.3 Form of Distribution Agreement for Senior Notes.
4.1 Form(s) of Supplemental Indenture relating to New Bonds (to be filed as Exhibit(s) by means
of Form 8-K).
4.2 Specimen(s) of New Bonds (to be filed as Exhibit(s) by means of Form 8-K).
4.3 Form(s) of Supplemental Indenture relating to Offered Debt Securities (to be filed as
Exhibit(s) by means of Form 8-K).
4.4 Specimen(s) of Offered Debt Securities (to be filed as Exhibit (s) by means of Form 8-K).
4.5 Form(s) of Supplemental Indenture relating to Offered Senior Notes (to be filed as
Exhibit(s) by means of Form 8-K).
4.6 Specimen(s) of Offered Senior Notes (to be filed as Exhibit(s) to Form 8-K).
5.1 Opinion of Snell & Wilmer L.L.P.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Snell & Wilmer L.L.P. (included in Opinion filed as Exhibit No. 5.1).
24.1 Power of Attorney (see II-6).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New
York, as Bond Trustee under the Mortgage.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Bank of New York, as Trustee under the Indenture
relating to the subordinated Debt Securities.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Chase Manhattan Bank, as Trustee under the
Indenture relating to the senior Debt Securities.
25.4 Form T-1 Statement of Eligibility under Trust Indenture Act of 1939 of The Bank of New York,
as Trustee under the Indenture relating to the Senior Notes.
II-2
In addition to those Exhibits shown above, the Company hereby incorporates
the following Exhibits pursuant to Rule 411 of Regulation C promulgated under
the Securities Act of 1933 by reference to the filings set forth below:
EXHIBIT PREVIOUSLY FILED DATE
NO. DESCRIPTION AS EXHIBIT: FILE NO. EFFECTIVE
--- ----------- ----------- -------- ---------
4.7 Mortgage and Deed of Trust 4.1 to September 1992 Form 10-Q 1-4473 11-9-92
relating to Company's First Report
Mortgage Bonds, together with
forty-eight indentures
supplemental thereto.
Forty-ninth Supplemental 4.1 to 1992 Form 10-K Report 1-4473 3-30-93
Indenture.
Fiftieth Supplemental Indenture. 4.2 to 1993 Form 10-K Report 1-4473 3-30-94
Fifty-first Supplemental 4.1 to August 1, 1993 Form 8-K 1-4473 9-27-93
Indenture. Report
Fifty-second Supplemental 4.1 to September 30, 1993 Form 1-4473 11-15-93
Indenture. 10-Q Report
Fifty-third Supplemental 4.5 to Registration Statement No. 1-4473 3-1-94
Indenture. 33-61228 by means of February 23,
1994 Form 8-K Report
Fifty-fourth Supplemental 4.1 to Registration Statements 1-4473 11-22-96
Indenture. Nos. 33-61228, 33-55473,
33-64455 and 333-15379 by means
of November 19, 1996 Form 8-K
Report
Fifty-fifth Supplemental 4.8 to Registration Statements 1-4473 4-9-97
Indenture. Nos. 33-55473, 33-64455 and
333-15379 by means of April 7,
1997 Form 8-K Report
4.8 Indenture dated as of January 1, 4.6 to January 1, 1995 Form 8-K 1-4473 1-11-95
1995 among the Company and The Report
Bank of New York, as Trustee,
relating to subordinated Debt
Securities.
4.9 First Supplemental Indenture 4.4 to January 1, 1995 Form 8-K 1-4473 1-11-95
dated as of January 1, 1995, Report
relating to the issuance of
$75,000,000 of 10% Junior
Subordinated Deferrable
Interest Debentures, Series A,
Due 2025.
4.10 Form of Indenture relating to 4.3 to Registration Statement No. 1-4473 11-20-95
Senior Debt Securities. 33-64455
4.11 Agreement of Resignation, 4.1 to September 29, 1995 Form 1-4473 10-24-95
Appointment, Acceptance, 8-K Report
and Assignment dated as of
August 18, 1995 among the
Company, Bank of America
National Trust and Savings
Association and The Bank of New
York.
4.12 Indenture dated as of November 4.5 to Registration Statements 1-4473 11-22-96
15, 1996 among the Company and Nos. 33-61228, 33-55473,
The Bank of New York, as 33-64455 and 333-15379 by means
Trustee. of November 19, 1996 Form 8-K
Report
II-3
EXHIBIT PREVIOUSLY FILED DATE
NO. DESCRIPTION AS EXHIBIT: FILE NO. EFFECTIVE
--- ----------- ----------- -------- ---------
4.13 First Supplemental Indenture. 4.6 to Registration Statements 1-4473 11-22-96
Nos. 33-61228, 33-55473,
33-64455 and 333-15379 by means
of November 19, 1996 Form 8-K
Report
4.14 Second Supplemental Indenture. 4.10 to Registration Statements 1-4473 4-9-97
Nos. 33-55473, 33-64455 and
333-15379 by means of April 7,
1997 Form 8-K Report
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the Company has been advised that, in
the opinion of the Securities and Exchange Commission, such indemnification is
against
II-4
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on the 21st day of May,
1997.
ARIZONA PUBLIC SERVICE COMPANY
By William J. Post
-------------------------------------
(William J. Post, President and
Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated. Each person whose signature appears below hereby
authorizes William J. Post, George A. Schreiber, Jr., William J. Hemelt, and
Nancy E. Felker and each of them, as attorneys-in-fact, to sign in his or her
name and behalf, individually and in each capacity designated below, and to file
any amendments, including post-effective amendments, to this registration
statement, and any related Rule 462(b) registration statement or amendment
thereto.
SIGNATURE TITLE DATE
--------- ----- ----
William J. Post Principal Executive Officer May 21, 1997
- -------------------------------- and Director
(William J. Post, President
and Chief Executive Officer)
George A. Schreiber, Jr. Principal Accounting and May 21, 1997
- -------------------------------- Financial Officer
(George A. Schreiber, Jr., and Director
Executive Vice President and
Chief Financial Officer)
O. Mark DeMichele Director May 21, 1997
- --------------------------------
(O. Mark DeMichele)
Martha O. Hesse Director May 21, 1997
- --------------------------------
(Martha O. Hesse)
Marianne M. Jennings Director May 21, 1997
- --------------------------------
(Marianne M. Jennings)
Robert G. Matlock Director May 21, 1997
- --------------------------------
(Robert G. Matlock)
John R. Norton III Director May 21, 1997
- --------------------------------
(John R. Norton III)
Donald M. Riley Director May 21, 1997
- ---------------------------------
(Donald M. Riley)
II-6
SIGNATURE TITLE DATE
--------- ----- ----
Richard Snell Director May 21, 1997
- --------------------------------
(Richard Snell)
Dianne C. Walker Director May 21, 1997
- --------------------------------
(Dianne C. Walker)
Ben F. Williams, Jr. Director May 21, 1997
--------------------------------
(Ben F. Williams, Jr.)
II-7
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
EXHIBITS TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------
ARIZONA PUBLIC SERVICE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
================================================================================
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
1.1 Form of Underwriting Agreement for New Bonds.
1.2 Form of Underwriting Agreement for Debt Securities.
1.3 Form of Distribution Agreement for Senior Notes.
4.1 Form(s) of Supplemental Indenture relating to New Bonds (to be filed as Exhibit(s) by means
of Form 8-K).
4.2 Specimen(s) of New Bonds (to be filed as Exhibit(s) by means of Form 8-K).
4.3 Form(s) of Supplemental Indenture relating to Offered Debt Securities (to be filed as
Exhibit(s) by means of Form 8-K).
4.4 Specimen(s) of Offered Debt Securities (to be filed as Exhibit(s) by means of Form 8-K).
4.5 Form(s) of Supplemental Indenture relating to Offered Senior Notes (to be filed as Exhibit(s)
by means of Form 8-K.)
4.6 Specimen(s) of Offered Senior Notes (to be filed as Exhibit(s) to Form 8-K).
5.1 Opinion of Snell & Wilmer L.L.P.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Snell & Wilmer L.L.P. (included in Opinion filed as Exhibit No. 5.1).
24.1 Power of Attorney (see II-6).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New
York, as Bond Trustee under the Mortgage.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Bank of New York, as Trustee under the Indenture
relating to the subordinated Debt Securities.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Chase Manhattan Bank, as Trustee under the
Indenture relating to the senior Debt Securities.
25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New
York, as Trustee under the Indenture relating to the Senior Notes.
For a description of the Exhibits incorporated in this filing by reference
see page II-3.