Exhibit 99.3
EXHIBIT C
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SOUTHWESTERN PUBLIC SERVICE COMPANY
and
THE CHASE MANHATTAN BANK,
As Trustee
_____________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 1, 1999
Supplementing the Indenture
Dated as of February 1, 1999
____________________________________
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 1, 1999, is between
SOUTHWESTERN PUBLIC SERVICE COMPANY, a New Mexico corporation (hereinafter
called the "Issuer" or the "Company"), having its principal office at Tyler at
Xxxxx, Xxxxxxxx, Xxxxx 00000, and THE CHASE MANHATTAN BANK, as Trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Recitals of the Issuer
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The Issuer and the Trustee have heretofore entered into an Indenture, dated
as of February 1, 1999 (such Indenture, as supplemented by this supplemental
indenture being hereinafter referred to as the "Indenture"), relating to the
issuance at any time or from time to time of its Securities on terms to be
specified at the time of issuance. As of the date hereof, no Securities have
been issued under the Indenture. Terms used and not otherwise defined herein
shall (unless the context otherwise clearly requires) have the respective
meanings given to them in the Indenture.
The Indenture provides in Article Two thereof that, prior to the issuance
of Securities of any series, the form of such Securities and the terms
applicable to such series shall be established in, or pursuant to, the authority
granted in a resolution of the Board of Directors (delivered to the Trustee in
the form of a Bond Resolution) or established in one or more indentures
supplemental thereto.
The Issuer desires by this supplemental indenture, among other things, to
establish the form of the Securities of a series, to be titled Series A Senior
Notes, 6.20% due March 1, 2009 of the Issuer, and to establish the terms
applicable to such series, pursuant to Sections 2.01 and 10.01 of the Indenture.
The Issuer has duly authorized the execution and delivery of this supplemental
indenture.
Article Ten of the Indenture provides that the Issuer, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time and
at any time amend the Indenture without the consent of Securityholders for
certain purposes enumerated in Section 10.01 thereof, including purposes set
forth in subsection (4) of said Section 10.01.
The execution and delivery of this supplemental indenture by the parties
hereto are in all respects authorized by the provisions of the Indenture.
All things necessary have been done to make this supplemental indenture a
valid agreement of the Issuer, in accordance with its terms.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, as follows:
ARTICLE ONE
Establishment of Series A Notes, 6.20% due March 1, 2009
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Section 1.01. The title of the series of the Securities established by
this supplemental indenture shall be Series A Senior Notes, 6.20% due March 1,
2009 of the Issuer (hereinafter called the "Series A Notes"). The Series A
Notes shall be issued in registered form substantially in the form set forth in
Exhibit A hereto (which is hereby incorporated herein and made a part hereof),
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subject to changes in the form thereof made by the Issuer and acceptable to the
Trustee.
Section 1.02. The Series A Notes shall be limited to $100,000,000 in
aggregate principal amount.
Section 1.03. The Series A Notes may be issued in whole or in part as one
or more Global Securities and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global Securities.
The Depository for such Global Security or Global Securities representing Series
A Notes may surrender one or more Global Securities representing Series A Notes
in exchange in whole or in part for individual Series A Notes on such terms as
are acceptable to the Issuer and such Depository and otherwise subject to the
terms of Section 2.12 of the Indenture.
Section 1.04. The Issuer hereby appoints, or confirms the appointment of,
The Chase Manhattan Bank as the initial Trustee, Transfer Agent and Paying
Agent, subject to the provisions of the Indenture with respect to resignation,
removal and succession, and subject, further, to the right of the Issuer to
appoint additional agents (including Paying Agents).
Section 1.05. The terms of the Series A Notes shall be as set forth in
Exhibit A hereto, and shall include the payment and other terms reflected on the
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Series A Notes as actually executed, authenticated and delivered under the
Indenture.
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ARTICLE TWO
Miscellaneous
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Section 2.01. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
of this supplemental indenture. The Indenture, as supplemented by this
supplemental indenture, is in all respects hereby adopted, ratified and
confirmed.
Section 2.02. This supplemental indenture may be executed in any number of
counterparts, and on separate counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 2.03. If any provision of this supplemental indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, through operation of Section 318(c), such imposed duties
shall control.
Section 2.04. The Article headings herein are for convenience only and
shall not affect the interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested as of the 1st day of March, 1999.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[Seal]
Attest:
/s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK
By: /s/ X.X. Xxxxx
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Authorized Signatory
X.X. Xxxxx
Vice President
[Seal]
Attest:
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Trust Officer
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EXHIBIT A
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CUSIP: No.________ $100,000,000
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOUTHWESTERN PUBLIC SERVICE COMPANY
Series A Senior Notes, 6.20% due March 1, 2009
Southwestern Public Service Company promises to pay to _________ or registered
assigns the principal sum of One Hundred Million Dollars on March 1, 2009.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
SOUTHWESTERN PUBLIC SERVICE COMPANY
Series A Senior Notes, 6.20% due March 1, 2009
1. Interest.
Southwestern Public Service Company ("Company"), a corporation
organized and existing under the laws of the State of New Mexico,
promises to pay interest on the principal amount of this Note at the
rate per annum shown above. The Company will pay interest on March 1
to the holder of record on February 15 and on September 1 to the holder
of record on August 15 of each year commencing September 1, 1999.
Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 2,
1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.
The Company will pay interest on this Note to the person who is the
registered holder of the Note at the close of business on the record
date for the next interest payment date, except as otherwise provided
in the Indenture. This Note must be surrendered to a Paying Agent to
collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money. It may mail
an interest check to the Holder's registered address.
3. Bond Agents.
Initially, The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Corporate Trust Group, will act as Paying
Agent and Transfer Agent. The Company may change any Paying Agent or
Transfer Agent without notice or provide for more than one such agent.
The Company or any Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the Trustee.
4. Indenture.
This Note is one of a series of securities issued under an Indenture
dated as February 1, 1999 ("Indenture") between the Company and The
Chase Manhattan Bank ("Trustee"). The terms of this Note include those
stated in the Indenture including in the supplemental indenture dated
as of March 1, 1999 creating the Notes
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of this series and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb).
Securityholders are referred to the Indenture, the supplemental
indenture and the Act for a statement of such terms.
5. Redemption.
The Notes of this series are subject to redemption upon not less than
30 days' notice by first class mail, in whole at any time or in part
from time to time at the option of the Company at a redemption price
equal to the greater of (i) 100% of the principal amount of the Notes
of this series to be redeemed or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Yield
plus one and one-half tenths of one percent (.15%), plus in each case
accrued and unpaid interest to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes of this series that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes of this
series.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, as set forth
in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such release
(or any successor release) is not published or does not contain such
prices on such business day, (A) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest
and lowest such Reference Treasury Dealer
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Quotations for such redemption date, or (B) if the Trustee obtains
fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
"Independent Investment Banker" means Xxxxxxx Xxxxx Xxxxxx Inc. or its
successor ("Salomon") or, if such firm is unwilling or unable to select
the Comparable Treasury Issue, one of the remaining Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Salomon and any other
primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer") designated by, and not affiliated with, Salomon,
provided, however, that if Salomon or any of its designees shall cease
to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Company by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days before the
redemption date to the Holder hereof to be redeemed at such Holder's
registered address.
A notice of redemption may provide that it is subject to the occurrence
of any event before the date fixed for such redemption as described in
such notice ("Conditional Redemption") and such notice of Conditional
Redemption shall be of no effect unless all such conditions to the
redemption have occurred before such date or have been waived by the
Company.
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7. Denominations, Transfer, Exchange.
The Notes of this series are in registered form without coupons in
denominations of $1000 and whole multiples of $1000. The transfer of
this Note may be registered and this Note may be exchanged as provided
in the Indenture. The Transfer Agent may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange or register the transfer of this Note
or portion thereof selected for redemption. Also, it need not exchange
or register the transfer of this Note for a period of 15 days before a
selection of Securities to be redeemed.
8. Persons Deemed Owners.
The registered holder of this Note may be treated as its owner for all
purposes.
9. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Notes of this
series may be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by the
amendment. Subject to certain exceptions, a default on a series may be
waived with the consent of the holders of a majority in principal
amount of the series.
Without the consent of any Securityholder, the Indenture or the Notes
of this series may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for assumption
of Company obligations to Securityholders; or to make any change that
does not materially adversely affect the rights of any Securityholder.
10. Restrictive Covenants.
The Notes of this series are unsecured general obligations of the
Company limited to $100,000,000 principal amount. The Indenture does
not limit other unsecured debt.
11. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
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12. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions as set forth in Article 8 of the
Indenture, the Company at any time may terminate some or all of its
obligations under this Note and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on this Note to redemption or maturity. U.S.
Government Obligations are securities backed by the full faith and
credit of the United States of America or certificates representing an
ownership interest in such Obligations.
13. Defaults and Remedies.
An Event of Default includes: default for 60 days in payment of
interest on the Notes of this series; default in payment of principal
on the Notes of this series; default in payment or satisfaction of any
sinking fund obligation with respect to this series; default by the
Company for a specified period after notice to it in the performance of
any of its other agreements applicable to the Notes of this series;
certain events of bankruptcy or insolvency; and any other Event of
Default provided for in this series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least 25% in principal
amount of the Notes of this series may declare the principal of all the
Notes of this Series to be due and payable immediately.
Securityholders may not enforce the Indenture or the Notes of this
series except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the
Notes of this series. Subject to certain limitations, holders of a
majority in principal amount of the Notes of this series may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing default (except
a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish
annual compliance certificates to the Trustee.
14. Trustee Dealings with Company.
The Chase Manhattan Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
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15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
this Note or the Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. The Holder hereof by
accepting this Note waives and releases all such liability. The waiver
and release are part of the consideration for the issue of this Note.
16. Authentication.
This Note shall not be valid until authenticated by a manual signature
of the Trustee.
17. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and
not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gifts
to Minors Act).
The Company will furnish to the Holder hereof upon written request and
without charge a copy of the Indenture including the supplemental indenture,
which contains the text of this Note in larger type. Requests may be made to:
Southwestern Public Service Company, Tyler at Xxxxx, Xxxxxxxx, Xxxxx 00000,
Attention: Corporate Secretary.
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Dated:_________, 1999
THE CHASE MANHATTAN BANK SOUTHWESTERN PUBLIC SERVICE
Transfer Agent and Paying Agent COMPANY
By: _______________________
Xxxxx X. Xxxxxxx
Senior Vice President
Chief Financial Officer &
Treasurer
Attest
By: ______________________
Xxxxx X. Xxxx
Assistant Secretary
(SEAL)
Authenticated:
THE CHASE MANHATTAN BANK
By: ________________________
Authorized Signature Vice-President
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
________________________________________
: :
: :
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(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________
_______________________________
_______________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this Note
on the books of the Company. That agent may substitute another to act for him.
Date:_______________________________ Your Signature_______________________
(Sign exactly as your name appears on the other side of This Note)
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