Exhibit 4.01
SOUTHWESTERN PUBLIC SERVICE
COMPANY
and
THE BANK OF NEW YORK,
as Successor to
THE CHASE MANHATTAN BANK,
as Trustee
FOURTH SUPPLEMENTAL
INDENTURE
Dated as of October 1,
2006
Supplementing the
Indenture
Dated as of February 1,
1999
THIS FOURTH SUPPLEMENTAL INDENTURE,
dated as of October 1, 2006 (this “Supplemental
Indenture”), is between SOUTHWESTERN PUBLIC SERVICE COMPANY,
a New Mexico corporation (hereinafter called the
“Issuer” or the “Company”), having its
principal office at Tyler at Sixth Street, Amarillo, Texas 79101,
and THE BANK OF NEW YORK, as successor to THE CHASE MANHATTAN BANK,
as Trustee (hereinafter called the “Trustee”), having
its office at 4 New York Plaza 15th Floor, New York, New York
10004.
Recitals of the
Issuer
The Issuer and the Trustee have
heretofore entered into an Indenture, dated as of February 1,
1999, a First Supplemental Indenture, dated as of March 1,
1999, a Second Supplemental Indenture, dated as of October 1,
2001, and a Third Supplemental Indenture, dated as of
October 1, 2003 (such Indenture, as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the
Third Supplemental Indenture and this Supplemental Indenture, being
hereinafter referred to as the “Indenture”), relating
to the issuance at any time or from time to time of its Securities
on terms to be specified at the time of issuance. Pursuant to
Section 7.08 of the Indenture, JPMorgan Chase Bank, N.A. succeeded
The Chase Manhattan Bank as trustee under the Indenture and The
Bank of New York subsequently succeeded JPMorgan Chase Bank, N.A.
as trustee under the Indenture. Terms used and not otherwise
defined herein shall (unless the context otherwise clearly
requires) have the respective meanings given to them in the
Indenture.
The Indenture provides in
Article Two thereof that, prior to the issuance of Securities
of any series, the form of such Securities and the terms
applicable to such series shall be established in, or pursuant
to, the authority granted in a resolution of the Board of Directors
(delivered to the Trustee in the form of a Bond Resolution) or
established in one or more indentures supplemental
thereto.
The Issuer desires by this
Supplemental Indenture, among other things, to establish the
form of the Securities of the Issuer of a series to be titled
Series E Senior Notes, 5.60% due 2016 and the form of the
Securities of the Issuer of a series to be titled Series F Senior
Notes, 6% due 2036, and to establish the terms applicable to each
such series, pursuant to Sections 2.01 and 10.01 of the
Indenture. The Issuer has duly authorized the execution and
delivery of this Supplemental Indenture.
Article Ten of the Indenture
provides that the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may from time to time and
at any time amend the Indenture without the consent of
Securityholders for certain purposes enumerated in
Section 10.01 thereof, including purposes set forth in
subsection (4) of said Section 10.01.
The execution and delivery of this
Supplemental Indenture by the parties hereto are in all respects
authorized by the provisions of the Indenture. All things necessary
have been done to make this Supplemental Indenture a valid
agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FOURTH
SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the
premises, it is mutually covenanted and agreed, as
follows:
ARTICLE I.
ESTABLISHMENT OF SERIES E NOTES, 5.60% DUE
2016
Section 1.01. There shall
be established by this Supplemental Indenture Securities of the
Issuer of a series titled Series E Senior Notes, 5.60% due
2016 (hereinafter called the “Series E Notes”).
The Series E Notes shall be issued in registered
form substantially in the form set forth in
Exhibit A hereto (which is hereby incorporated herein and made
a part hereof), subject to changes in the form thereof
made by the Issuer and acceptable to the Trustee.
Section 1.02. The
Series E Notes shall be limited to $200,000,000 in aggregate
principal amount.
Section 1.03. The Series
E Notes may be issued in whole or in part as one or more
Global Securities, and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global
Securities. The Depository for such Global Security or Global
Securities representing the Series E Notes may surrender one
or more Global Securities representing the Series E Notes in
exchange in whole or in part for individual Series E Notes on such
terms as are acceptable to the Issuer and such Depository and
otherwise subject to the terms of Section 2.12 of the
Indenture.
Section 1.04. The Issuer
hereby appoints, or confirms the appointment of, The Bank of New
York as the initial Trustee, Transfer Agent and Paying Agent,
subject to the provisions of the Indenture with respect to
resignation, removal and succession, and subject, further, to the
right of the Issuer to appoint additional agents (including Paying
Agents).
Section 1.05. The terms
of the Series E Notes shall be as set forth in Exhibit A
hereto, and shall include the payment and other terms reflected on
the Series E Notes as actually executed, authenticated and
delivered under the Indenture.
ARTICLE II.
ESTABLISHMENT OF SERIES F NOTES, 6% DUE
2036
Section 2.01. There shall
be established by this Supplemental Indenture Securities of the
Issuer of a series titled Series F Senior Notes, 6% due 2036
(hereinafter called the “Series F Notes”). The
Series F Notes shall be issued in registered
form substantially in the form set forth in
Exhibit B hereto (which is hereby incorporated herein and made
a part hereof), subject to changes in the form thereof
made by the Issuer and acceptable to the Trustee.
Section 2.02. The
Series F Notes shall be limited to $250,000,000 in aggregate
principal amount.
Section 2.03. The Series
F Notes may be issued in whole or in part as one or more
Global Securities, and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global
Securities. The Depository for such Global Security or Global
Securities representing the Series F Notes may surrender one
or more Global Securities representing the Series F Notes in
exchange in whole or in part for individual Series F
2
Notes on such terms as are
acceptable to the Issuer and such Depository and otherwise subject
to the terms of Section 2.12 of the Indenture.
Section 2.04. The Issuer
hereby appoints, or confirms the appointment of, The Bank of New
York as the initial Trustee, Transfer Agent and Paying Agent,
subject to the provisions of the Indenture with respect to
resignation, removal and succession, and subject, further, to the
right of the Issuer to appoint additional agents (including Paying
Agents).
Section 2.05. The terms
of the Series F Notes shall be as set forth in Exhibit B
hereto, and shall include the payment and other terms reflected on
the Series F Notes as actually executed, authenticated and
delivered under the Indenture.
ARTICLE III.
MISCELLANEOUS
Section 3.01. The
recitals contained herein shall be taken as the statements of the
Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental
Indenture.
Section 3.02. The
Indenture, as supplemented by this Supplemental Indenture, is in
all respects hereby adopted, ratified and confirmed.
Section 3.03. This
Supplemental Indenture may be executed in any number of
counterparts, and on separate counterparts, each of which shall be
an original; but such counterparts shall together constitute but
one and the same instrument.
Section 3.04. If any
provision of this Supplemental Indenture limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, through operation of
Section 318(c), such imposed duties shall control.
Section 3.05. The
Article headings herein are for convenience only and shall not
affect the interpretation hereof.
3
IN WITNESS WHEREOF, the parties
hereto have caused this Fourth Supplemental Indenture to be duly
executed, and their respective corporate seals to be hereunto
affixed and attested as of the 1st day of October, 2006.
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SOUTHWESTERN PUBLIC SERVICE COMPANY
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By:
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/s/ George E. Tyson II
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Name: George E. Tyson II
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Title: Vice President and Treasurer
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[Seal]
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Attest:
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/s/ Patrice D. Blaeser
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Name: Patrice D. Blaeser
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Title: Assistant Secretary
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THE BANK OF NEW YORK
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By:
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/s/ Remo J. Reale
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Authorized Signatory
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Name: Remo J. Reale
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Title: Vice President
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[Seal]
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Attest:
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/s/ Jeremy F. Finkelstein
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Name: Jeremy F. Finkelstein
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Title: Assistant Vice President
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4
EXHIBIT A
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CUSIP: 845743 BK 8
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$200,000,000
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THIS SECURITY IS A GLOBAL SECURITY
REGISTERED IN THE NAME OF THE DEPOSITARY (REFERRED TO HEREIN) OR A
NOMINEE THEREOF AND UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (55 WATER STREET, NEW YORK, NEW YORK), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY
PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
SOUTHWESTERN PUBLIC SERVICE
COMPANY
Series E Senior Notes, 5.60%
due 2016
Southwestern Public Service Company
promises to pay to Cede & Co. or registered assigns the
principal sum
of
Dollars on October 1, 2016.
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Interest Payment Dates:
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April 1 and October 1
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Record Dates:
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March 15 and September 15
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A-1
SOUTHWESTERN PUBLIC SERVICE
COMPANY
Series E Senior Notes, 5.60%
due 2016
1. Interest.
Southwestern Public Service Company
(“Company”), a corporation organized and existing under
the laws of the State of New Mexico, promises to pay interest on
the principal amount of this Note at the rate per annum shown
above. The Company will pay interest on April 1 to the holder of
record on March 15 and on October 1 to the holder of record on
September 15 of each year commencing April 1, 2007. Interest on
this Note will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from October 6,
2006. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of
Payment.
The Company will pay interest on
this Note to the person who is the registered Holder of the Note at
the close of business on the record date for the next interest
payment date, except as otherwise provided in the Indenture. This
Note must be surrendered to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of
the United States that at the time of payment is legal tender for
payment of public and private debts. So long as this Note is in
book-entry only form and registered in the name of The Depository
Trust Company, or a nominee thereof, as Depositary, the Company
will wire any payments of principal, interest or premium to such
Depositary. Otherwise, the Company may pay principal and
interest by check payable in such money. It may mail an
interest check to the Holder’s registered address.
3. Bond Agents.
Initially, The Bank of New York, 4
New York Plaza 15th Floor, New York, New York 10004, will act as
Paying Agent and Transfer Agent. The Company may change any
Paying Agent or Transfer Agent without notice or provide for more
than one such agent. The Company or any Affiliate may act in
any such capacity. Subject to certain conditions, the Company
may change the Trustee.
4. Indenture.
This Note is one of a series of
securities issued under an Indenture dated as of February 1,
1999 (“Indenture”) between the Company and The Bank of
New York, as successor to The Chase Manhattan Bank
(“Trustee”). The terms of this Note include those
stated in the Indenture including the Fourth Supplemental Indenture
dated as of October 1, 2006 creating the Notes of this
series and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb).
Securityholders are referred to the Indenture, the Supplemental
Indenture and the Act for a statement of such terms.
A-2
5. Redemption.
The Notes of this series are subject
to redemption upon not less than 30 days’ notice by first
class mail, in whole at any time or in part from time to time at
the option of the Company, at a “make whole” redemption
price equal to the greater of (a) 100% of the principal amount of
the Notes of this series to be redeemed or (b) the sum of the
present values of the remaining scheduled payments of principal and
interest thereon (excluding the portion of any such interest
accrued to the date fixed for redemption) discounted to the date
fixed for redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 15
basis points, plus accrued and unpaid interest to the date fixed
for redemption.
“Treasury Yield” means,
for any redemption date, (i) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated “H.15(519)” or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded U.S.
Treasury securities adjusted to constant maturity under the caption
“Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Remaining Term, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury Yield
will be interpolated or extrapolated from such yields on a straight
line basis, rounding to the nearest month); or (ii) if such release
(or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the
rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date. The Treasury Yield will be calculated on the third
business day preceding the date fixed for redemption.
“Comparable Treasury
Issue” means the U.S. Treasury security selected by an
Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes of this series that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the
Notes.
“Comparable Treasury
Price” means (i) the average of the Reference Treasury Dealer
Quotations for the redemption date, after excluding the highest and
lowest Reference Treasury Dealer Quotations for the redemption
date, or (ii) if the Trustee obtains fewer than four Reference
Treasury Dealer Quotations, the average of all of the
quotations.
“Independent Investment
Banker” means any one of Barclays Capital Inc., Citigroup
Global Markets Inc., KeyBanc Capital Markets, a division of
McDonald Investments Inc. or their respective successors, or, if
such firms or their successors are unwilling or unable to select
the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee after
consultation with the Company.
“Reference Treasury
Dealer” means (i) any one of Barclays Capital Inc., Citigroup
Global Markets Inc., KeyBanc Capital Markets, a division of
McDonald Investments Inc., or any
A-3
other primary U.S. Government
securities dealer in New York City (a “Primary Treasury
Dealer”) designated by, and not affiliated with, Barclays
Capital Inc., Citigroup Global Markets Inc., KeyBanc Capital
Markets, a division of McDonald Investments Inc., or their
r