-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H9+IXyoUWVjeB8dv5JhCVVT+hfNPdIGH9F+zsA8QGFw4t6lMsbA7o6rsDaUiDZYz D9rt2SZ4uT72sPYhPZO4jA== 0000950162-96-000329.txt : 19960606 0000950162-96-000329.hdr.sgml : 19960606 ACCESSION NUMBER: 0000950162-96-000329 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 16 REFERENCES 429: 033-53171 FILED AS OF DATE: 19960604 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHWESTERN PUBLIC SERVICE CO CENTRAL INDEX KEY: 0000092521 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 750575400 STATE OF INCORPORATION: NM FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-05199 FILM NUMBER: 96576791 BUSINESS ADDRESS: STREET 1: SPS TOWER STREET 2: TYLER AT SIXTH ST CITY: AMARILLO STATE: TX ZIP: 79170 BUSINESS PHONE: 8063782121 MAIL ADDRESS: STREET 1: PO BOX 1261 CITY: AMARILLO STATE: TX ZIP: 79170 S-3 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on June 4, 1996 Registration No. 33-_____ _________________________________________________________________ _________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ____________________ FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ____________________ SOUTHWESTERN PUBLIC SERVICE COMPANY (Exact name of Registrant as specified in its charter) New Mexico 75-0575400 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) Tyler at Sixth Amarillo, Texas 79101 (806) 378-2121 (Address, including zip code, and telephone number, including area code, of principal executive offices) Bill D. Helton Chairman of the Board and Chief Executive Officer Tyler at Sixth Amarillo, Texas 79101 (806) 378-2121 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: Gary W. Wolf, Esq. Cahill Gordon & Reindel 80 Pine Street New York, New York 10005 ___________________ -2- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement. ____________________ 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 the Form is a post-effective amendment filed pursuant 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. ____ /___/ ____________________ -3- CALCULATION OF REGISTRATION FEE ______________________________________________________________________________ ______________________________________________________________________________ : : Proposed : Proposed : : : maximum : maximum : Title of each : Amount : offering : aggregate : Amount of class of securities : to be : price per: offering : registration to be registered : registered : unit : price : fee : : : : Preferred Stock : (1)(4) : (2) : (1)(2)(4) : Debt Securities : (1)(3) : (2) : (1)(2)(3) : _____________________:______________:__________:_______________:______________ Total : $150,000,000 : (2) : $150,000,000 : $51,724.14 (5) ______________________________________________________________________________ (1) In no event will the aggregate maximum offering price of all securities issued pursuant to this Registration Statement exceed $150,000,000. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. (2) The proposed maximum 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 is being registered hereunder an indeterminate principal amount of Debt Securities. (4) Subject to Footnote (1), there are being registered hereunder an indeterminate number of shares of Preferred Stock (par value $1 per share). (5) Calculated pursuant to Rule 457(o). ____________________ 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 the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. This Registration Statement is also a post-effective amendment to Registration Statement No. 33-53171. Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus contained herein also covers $70,000,000 aggregate amount of securities previously registered under that Registration Statement. _________________________________________________________________ _________________________________________________________________ SUBJECT TO COMPLETION, DATED JUNE 4, 1996 PROSPECTUS $220,000,000 SOUTHWESTERN PUBLIC SERVICE COMPANY DEBT SECURITIES PREFERRED STOCK ____________________ Southwestern Public Service Company (the "Company") intends from time to time to sell shares of its Preferred Stock, $1 par value (the "New Preferred Stock"), and/or its Debt Securities (the "Debt Securities") consisting of First Mortgage Bonds (the "New Bonds"), in one or more series, and/or unsecured Debentures or Notes (the "New Unsecured Securities", and collectively with the New Preferred Stock and the New Bonds, the "Securities"), in one or more series, each on terms to be determined at the time or times of sale. The aggregate offering price of the Debt Securities and the New Preferred Stock to be sold will not exceed $220,000,000. All specific terms of the offering and sale of the Securities, including (i) the specific number of shares, designation, issue price, voting rights, rate and terms of payment of dividends and redemption provisions and sinking fund terms, if any, liquidation preferences, or other special rights, if any, and any other terms and conditions of the New Preferred Stock, (ii) the specific designation, aggregate principal amount, maturity, rate and terms of payment of interest, redemption provisions, sinking fund terms, if any, and any other terms and conditions of the Debt Securities and (iii) other specific terms and any listing on a securities exchange of the Securities in respect of which this Prospectus is being delivered will be set forth in a Prospectus Supplement ("Prospectus Supplement"), together with the terms of offering of such Securities. The Securities will be offered as set forth under "Plan of Distribution". ____________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE 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 _______, 1996 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 -2- UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. -3- AVAILABLE INFORMATION Southwestern Public Service Company (the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934 (the "1934 Act") and in accordance there- with files reports and other information with the Securities and Exchange Commission (the "Commission") which may be inspected and copied at the offices of the Commission, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade Center, Suite 1300, New York, New York 10048, and copies of such material can be obtained from the Public Reference Section of the Commission, Washington, D.C. 20549, at prescribed rates. Certain securities of the Company are listed on the New York, Chicago and Pacific Stock Exchanges. Reports, proxy and information statements, and other information con- cerning the Company can be inspected at such exchanges. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by the Company with the Commission (File No. 1-3789) pursuant to the the 1934 Act are incorporated herein by reference as of their respective dates of filing and shall be deemed to be a part hereof: 1. The Company's Annual Report on Form 10-K for the year ended August 31, 1995 (the "1995 Form 10-K"). 2. The Company's Quarterly Reports on Form 10-Q for the quarters ended November 30, 1995 (the "November Quarterly Report") and February 29, 1996 (the "February Quarterly Report"). 3. The Company's Current Reports on Form 8-K filed February 2, 1996 and February 26, 1996. 4. Joint Proxy Statement/Prospectus for the Annual Meeting held January 31, 1996 included in the Registration Statement on Form S-4 of New Century Energies, Inc. (Registra- tion No. 33-64951). All documents filed by the Company pursuant to Sec- tions 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior to the termination of this offer- ing shall also be deemed to be incorporated by reference in -4- this Prospectus and to be a part hereof from the date of filing of such documents. The Company hereby undertakes to provide without charge to each person, including any beneficial owner, to whom a copy of this Prospectus has been delivered, on the request of any such person, a copy of any or all documents referred to above which have been or may be incorporated by reference in this Prospectus (not including exhibits to such incorporated information that are not specifically incorporated by reference into such information). Requests for such copies should be directed to Secretary, Southwestern Public Service Company, Tyler at Sixth, Amarillo, Texas 79101. THE COMPANY The Company, incorporated under the laws of the State of New Mexico in 1921, is principally engaged in the genera- tion, transmission, distribution and sale of electric energy in portions of Texas, New Mexico, Oklahoma and Kansas. The elec- tric properties comprise an interconnected system. A major portion of the Company's electric operating revenues is derived from operations in Texas. The Company has two wholly owned non-utility subsidiaries, Utility Engineering Corporation and Quixx Corporation. The principal executive offices of the Com- pany are located at Tyler at Sixth, Amarillo, Texas 79101 (Tel: 806-378-2121). At the annual meeting of the Company's shareholders held on January 31, 1996, the shareholders approved the pro- posed "merger of equals" of the Company and Public Service Com- pany of Colorado ("PSCo") (the "Merger Agreement"). Pursuant to the terms of the Merger Agreement, upon satisfaction or waiver of the terms and conditions thereof, the Company and PSCo will become wholly owned subsidiaries of a new holding company called New Century Energies, Inc. The Company and PSCo will maintain their separate identities and continue to serve customers in their respective service areas. The Company's debt and any preferred stock (including the Securities) of the Company outstanding at the time of effectiveness of the merger will remain outstanding debt and preferred stock of the Company and the terms and conditions thereof will not change. The transaction is subject to various conditions including the receipt of approvals from various state and federal regulators. -5- USE OF PROCEEDS The proceeds from the sale of the Securities will be used as described in the Prospectus Supplement by which such Securities are offered. EARNINGS RATIOS The Ratio of Earnings to Fixed Charges and the Ratio of Earnings to Combined Fixed Charges and Preferred Dividend Requirements for each of the periods indicated is as follows:
Twelve Months Ended February 29, August 31, ------------ ---------------------------- 1996 1995 1994 1993 1992 1991 ---- ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges: 4.94 5.10 4.76 4.82 4.53 4.67 Combined Fixed Charges and Preferred Dividend Requirements: 4.26 4.37 4.04 4.01 3.63 3.79
The Ratios for future periods will be included in the Company's Reports on Form 10-K and 10-Q. Such Reports are incorporated by reference into this Prospectus at the time they are filed. DESCRIPTION OF NEW PREFERRED STOCK The following description of the New Preferred Stock sets forth certain general terms and provisions of the Compa- ny's Restated Articles of Incorporation (the "Articles") and the Company's Mortgage (see "Description of New Bonds") appli- cable to any series of New Preferred Stock. The definitive terms of any such series of New Preferred Stock are set forth in the Prospectus as amended and supplemented by the Prospectus Supplement by which such series of New Preferred Stock is offered. This Prospectus includes brief outlines of certain provisions contained in the Articles and such Mortgage and does not purport to be complete. Copies of instruments constituting -6- the Articles and the Mortgage are Exhibits to the Registration Statement and reference is made thereto for further information including definitions of certain terms used herein. General Under the Articles, the Board of Directors is autho- rized, without further shareholder action, to provide for the issuance of up to 10,000,000 shares of preferred stock, $1 par value (the "Preferred Stock"). As of the date of this Prospec- tus, the Company has no Preferred Stock issued or outstanding. The New Preferred Stock may be issued in one or more series, with such designations or titles; any voting powers; dividend rates and dates of payment; whether of not dividends shall be cumulative and, if cumulative, the date or dates from which dividends shall be cumulative; any redemption provisions, special or relative rights in the event of liquidation, disso- lution, distribution or winding up of the Company; any sinking fund provisions; any conversion provisions; and any other pref- erences, privileges, powers, rights, qualifications, limita- tions and restrictions, as shall be set forth as and when established by the Board of Directors of the Company and not inconsistent with applicable law or the Articles. The shares of any series of New Preferred Stock will be, when issued, fully paid and non-assessable and holders thereof will have no preemptive rights in connection therewith. The liquidation preference of any series of New Pre- ferred Stock is not necessarily indicative of the price at which shares of such series of New Preferred Stock will actu- ally trade at or after the time of their issuance. The market price of the shares of any series of New Preferred Stock can be expected to fluctuate with changes in market and economic con- ditions, the financial condition and prospects of the Company, and other factors that generally influence the market price of securities. Voting Rights Except as indicated in the Prospectus Supplement relating to a particular series of New Preferred Stock or except as expressly required by applicable law or the Articles, the holders of shares of New Preferred Stock will not have vot- ing rights. -7- The terms of the Preferred Stock may not be adversely changed without the consent of a majority in aggregate voting power of the Preferred Stock then outstanding or, if one or more but less than all of the shares thereof are so affected, a majority in aggregate voting power of the affected series vot- ing as one class. Dividend Rights Holders of each series of New Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors of the Company out of funds legally available there- fore, cash dividends at such rates (which may be variable or fixed, and if variable an index formula or other method may be used) and on such dates as are set forth in the Prospectus Sup- plement relating to such series of New Preferred Stock. Divi- dends will be payable to holders of record of New Preferred Stock as they appear on the books of the Company on such record dates as shall be fixed by the Board of Directors. Unless otherwise specified in the Prospectus Supplement relating to a series of New Preferred Stock, such dividends shall be payable from, and shall be cumulative from, the date of original issue of each share, so that if in any dividend period (being the period between such dividend payment dates) dividends at the rate or rates as described in the Prospectus Supplement relat- ing to such series of New Preferred Stock shall not have been declared and paid or set apart for payment on all outstanding shares of Preferred Stock for such dividend period and all pre- ceding dividend periods from and after the first day from which dividends are cumulative, then the aggregate deficiency shall be declared and fully paid or set apart for payment, but with- out interest, before any dividends shall be declared or paid or set apart for payment on the Common Stock by the Company. The cutting-off of dividends on Common Stock until the arrearages have been paid or provided for, as outlined above, and such rights, if any, to vote for the election of directors as may be set forth in the Prospectus Supplement relating to a series of New Preferred Stock, shall (unless otherwise set forth in the Prospectus Supplement) be the only consequences of the failure to declare or pay dividends on the New Preferred Stock. After payment in full of all dividend arrearages on the New Preferred Stock, dividends on the Common Stock may be declared and paid out of funds legally available for that purpose as the Board of Directors may determine. The Mortgage pursuant to which the Company's First Mortgage Bonds are issued contains a covenant limiting the -8- amount of dividends that the Company may declare on any stock, including Preferred Stock. (See "Description of New Bonds -- Dividend Covenant.") Redemption and Sinking Fund Provisions Any provisions relating to the redemption by the Com- pany or for a sinking fund or for redemption at the option of the holders of any series of New Preferred Stock will be as set forth in the Prospectus Supplement by which such New Preferred Stock is to be offered. Any provisions relating to limitations and restric- tions upon the payment of dividends or the making of other dis- tributions on, and upon the purchase, redemption, or other acquisition by the Company of, the Common Stock or any other class or classes of stock of the Company ranking junior to the New Preferred Stock as to dividends or upon liquidation, disso- lution, or winding up of the Company will be as set forth in the Prospectus Supplement. (See "Description of New Bonds -- Dividend Covenant" for present restrictions on the purchase or redemption of, or payments or distributions made in respect of Preferred Stock by the Company.) Ranking and Restriction on Indebtedness The relative rank, preference, and priority of the New Preferred Stock, with respect to dividend rights, and rights on liquidation, winding up and dissolution, will be as set forth in the Prospectus Supplement and in the Certificate of Designation of the series when issued. The New Preferred Stock may rank senior to, junior to, or on a parity with any other classes of equity securities issued by the Company, the terms of which specifically provide that such equity securities will rank junior to, senior to, or on parity with, such series of New Preferred Stock. Any provisions respecting the conditions or restric- tions upon the creation of indebtedness of the Company or upon the issuance of additional stock (including additional shares of such series or any other class) ranking on a parity with or senior to the New Preferred Stock as to dividends or distribu- tion of assets upon liquidation, dissolution, or winding up of the Company will be as set forth in the Prospectus Supplement. -9- Liquidation Rights In the event of liquidation, holders of the New Pre- ferred Stock may be entitled to receive, from assets available for distribution to stockholders, a preferential amount fixed for the respective series. Provisions relating to the liquida- tion preference payable on each series of New Preferred Stock will be set forth in the applicable Prospectus Supplement by which such New Preferred Stock will be offered. Transfer Agent and Registrar The transfer agent and registrar for the New Pre- ferred Stock will be Society National Bank, Cleveland, Ohio or its successor. DESCRIPTION OF NEW BONDS General The New Bonds will be issued in one or more series under the Indenture of Mortgage and Deed of Trust, dated August 1, 1946, to Chemical Bank, as trustee (the "Bond Trus- tee") as supplemented and amended and as it is to be supple- mented by a supplemental indenture for each series of New Bonds (such indenture, as so supplemented and amended, the "Mort- gage"). This Prospectus includes brief outlines of certain provisions contained in the Mortgage and does not purport to be complete. Copies of the instruments constituting the Mortgage are Exhibits to the Registration Statement and reference is made thereto for further information including definitions of certain terms used herein. The principal, premium, if any, and interest on the New Bonds are payable at the principal corporate trust office of Chemical Bank in New York, New York (unless the Company shall designate and maintain some other office or agency for such purpose), unless the Prospectus Supplement provides other- wise. Each series of New Bonds will have a stated principal amount, maturing date(s), interest rate(s) and other specific terms as may be determined at the time of sale, all of which will be set forth in the Prospectus Supplement relating to such series. Interest, payable semiannually at the rate set forth in such Prospectus Supplement, will be paid to the persons in whose names the New Bonds are registered at the close of busi- ness on the record date set forth therein. Unless otherwise -10- indicated in a Prospectus Supplement relating thereto, the New Bonds will be issuable only as fully registered bonds in denom- inations of $1,000 and integral multiples thereof, and will be exchangeable for other New Bonds of the same series in equal aggregate principal amounts without any service or other charge therefor by the Company, except for any applicable taxes or governmental charges. The New Bonds of a series may be issued in whole or in part in the form of one or more global New Bonds that will be deposited with, or on behalf of, The Depository Trust Com- pany or another depository identified in the Prospectus Supple- ment relating to the series (the "Depository"). If issued, Global New Bonds may be issued in registered or uncertificated form and in either temporary or permanent form. Unless and until it is exchanged in whole or in part for New Bonds in definitive form, a global New Bond may not be transferred except as a whole by the Depository to a nominee or a successor depository. See "Book-Entry Only System". Unless otherwise indicated in a Prospectus Supple- ment, the covenants contained in the Mortgage and the New Bonds do not afford holders of the New Bonds special protection in the event of a highly leveraged transaction involving the Com- pany that may adversely affect the holders of New Bonds. Optional Redemption Provisions The Prospectus Supplement for each series of New Bonds will indicate if such series is subject to redemption at the option of the Company prior to maturity. If so, the Pro- spectus Supplement will include the terms of such redemption, which will be made upon thirty days' notice and in the manner provided in the Mortgage. The provisions of this paragraph do not apply to redemptions pursuant to operation of any sinking fund (Mortgage, Articles 8 and 11). Sinking and Improvement Fund For each series of New Bonds for which the Company determines to provide a sinking and improvement fund, the terms of such fund will be described in the Prospectus Supplement relating to that series. -11- Security Each series of New Bonds together with all other Bonds heretofore or hereafter issued under the Mortgage will be equally and ratably secured by the Mortgage, which constitutes, in the opinion of Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., counsel for the Company, a valid and direct first lien (subject to Permitted Encumbrances) on all the present proper- ties (principally generating plants and transmission and dis- tribution facilities) and franchises of the Company, other than Excepted Property, subject only to a reversionary interest in the site of the Company's generating plant near Borger, Texas, conditioned upon its continued use in the generation, transmis- sion and distribution of electric energy, and to certain minor defects in the Company's title to the sites of certain of its transmission and distribution lines, substations and minor structures. Neither such reversionary interest nor such minor defects, in the opinion of such counsel, materially interferes with the use or operation of the Company's properties. The Mortgage contains provisions for subjecting to the lien thereof (subject to limitations contained in Article 15 in case of a merger or transfer or lease of the Com- pany's assets) after-acquired property other than Excepted Property. After-acquired property may, subject to certain lim- itations, be subject to prior liens (Mortgage Section 9.15), but, if so subject, may not be included in Gross Bondable Additions or Net Bondable Additions under the Mortgage until the prior liens thereon have been paid or prepaid (Mortgage Section 4.01). Maintenance Covenant The Mortgage provides that the Company shall, on or before October 1 in each year, deposit with the Trustee cash equal to the excess of (i) 15% of operating revenues for the year ended the preceding May 31 (less the cost of utility ser- vices purchased for resale and a further sum equal to the cost of fuel used to generate electricity in excess of 2.90 mills per net kilowatt hour) with certain adjustments, over (ii) the amounts charged on its books for maintenance and repairs during such year. Instead of depositing cash, the Company may (a) deliver Bonds or certify that Bonds have been or are to be retired (with certain exceptions) or (b) certify Gross Bondable Additions. Cash so deposited may be withdrawn in the same man- ner as cash deposited on release of property, may be applied to the purchase of Bonds, or may be applied to the redemption of Bonds (Mortgage Section 9.06; Supplemental Indenture Section 1.02; -12- Mortgage, Article 8). Cash, Bonds and Gross Bondable Additions used to satisfy the requirements of the Maintenance Covenant may be deducted from Retirements in computing Net Bondable Additions (Mortgage Section 4.01). Issuance of Additional Bonds The maximum principal amount of Bonds which may be outstanding under the Mortgage at any one time is $3,000,000,000. The Mortgage provides that Bonds may be issued from time to time against (1) 60% of Net Bondable Additions (Mortgage, Article 4), (2) Bonds retired or then to be retired (with certain exceptions) (Mortgage, Article 6) or (3) cash deposited with the Bond Trustee for such purpose, which cash may be withdrawn from time to time against 60% of Net Bondable Additions (Mortgage, Article 5). With certain exceptions in the case of (2) above, no additional Bonds may be issued unless Net Earnings for 12 consecutive calendar months within the 15 immediately preceding calendar months, before interest and income and profits taxes, are at least twice the annual inter- est requirements on all Bonds outstanding and then to be issued and on all prior lien indebtedness. Based on the Company's financial results for the twelve months ended August 31, 1995, the Company could have issued approximately $316,330,000 prin- cipal amount of additional Bonds under this restriction. The available amount of Net Bondable Additions and Retired Bonds at August 31, 1995 was approximately $335,000,000 and $115,300,000 respectively. Dividend Covenant The Mortgage provides that the Company will not declare any dividends (other than dividends payable in its stock) upon any shares of its stock, or make any payment on account of the purchase, redemption or other retirement of, or any distribution in respect of, any shares of its stock except to the extent that the sum of (1) $1,278,243.59, (2) Net Income of the Company, as defined, since June 1, 1946, and (3) net proceeds received by the Company from the issue since such date of any shares of its stock (but only up to an amount equal to the aggregate amount of all payments since such date on account of the acquisition of any shares of its stock), shall be greater than the aggregate amount of dividends declared on all classes of the Company's stock and of all payments made on account of the acquisition of, or distribution in respect of, any shares of its stock since such date (Mortgage Section 9.20). At August 31, 1995, approximately $949,000 of the Company's -13- retained earnings of $378,458,000 was not available for any such purpose under this limitation. As a result of the redemption and repurchase of all of the then-outstanding Preferred Stock of the Comany in December 1995 and January 1996, an additional $6,254,843 of retained earnings is also not available. Modification of the Mortgage The Mortgage, the rights and obligations of the Com- pany and the rights of the Bondholders may be modified with the consent of the holders of 66-2/3% of the Bonds, and, if less than all series of Bonds are affected, the consent of the hold- ers of 66-2/3% of the Bonds of each series affected (Mortgage Section 19.06). No modification of the terms of payment of princi- pal, interest or premium and no modification reducing the per- centage required for modification is effective against any Bondholder without his consent. The Company has reserved the right to amend the Mort- gage without any consent or other action by holders of any series of Bonds created after July 15, 1992, including the New Bonds, as shall be necessary in order to amend or delete in its entirety the maintenance covenant set forth in the Mortgage, and such covenant as amended by the Supplemental Indentures. (See "Description of New Bonds -- Maintenance Covenant.") Defaults An event of default is defined as: default in pay- ment of principal of any Bond; default for 30 days in payment of interest upon any Bond or of sinking or improvement fund installments in respect of any Bond; default under other cove- nants for 60 days after notice to the Company by the Trustee or holders of 10% of the Bonds; failure to discharge final money judgments within 60 days; certain events in bankruptcy, insol- vency, or reorganization; and certain assumptions of custody or control of the Company or its assets by governmental agencies. The Bond Trustee may withhold notice of default (except in pay- ment of principal, interest or sinking or improvement fund installments) if in its judgment it is in the interests of the Bondholders (Mortgage Section 13.01). Holders of a majority of the Bonds may require the Bond Trustee to, and holders of 25% of the Bonds may, declare the principal and interest due and payable on default, but holders of a majority of the Bonds may annul such declaration if such default is cured (Mortgage Section 13.01). No Bondholder may enforce the Mortgage unless such holder shall have given the Bond Trustee written notice of a default and unless the holders of a majority of the Bonds have requested the Bond Trustee in -14- writing to act and have offered the Bond Trustee reasonable indemnity or security, if required, and the Bond Trustee shall have failed to act for a period of 30 days (Mortgage Section 13.14). The foregoing does not affect the right of each Bondholder to enforce payment of principal and interest on the holder's Bond. Holders of a majority of the Bonds may direct the Bond Trustee to take action in the event of default (Mortgage Sections 13.04, 13.19). The Bond Trustee is not required to risk its funds or incur personal liability if there is reasonable ground for believing that repayment is not reasonably assured (Mortgage Section 16.02). Other than in connection with applications made under the Mortgage from time to time, periodic evidence is not required to be furnished as to absence of default or as to com- pliance with the terms of the Mortgage. The Bond Trustee Chemical Bank is the Bond Trustee under the Mortgage. DESCRIPTION OF NEW UNSECURED SECURITIES The New Unsecured Securities will be issued in one or more series, under an Indenture ("Indenture") between the Com- pany and the trustee to be named therein (the "Unsecured Secu- rities Trustee") the form of which is filed as an Exhibit to the Registration Statement. The following summaries of certain provisions of the Indenture do not purport to be complete and are qualified in their entirety by express reference to the Indenture. The Indenture will not limit the amount of New Unse- cured Securities that can be issued thereunder and provides that the New Unsecured Securities may be issued in series up to the aggregate principal amount which may be authorized from time to time by the Company. The New Unsecured Securities will be unsecured and will rank on a parity with all other unsecured and unsubordinated debt of the Company. Reference is made to the Prospectus Supplement for the following terms, if applicable, of the New Unsecured Secu- rities offered thereby: (1) the designation (e.g., Notes or Debentures), aggregate principal amount, currency or composite currency and denominations; (2) the price or prices (or method for determining price or prices) at which such New Unsecured -15- Securities will be issued and, if an index formula or other method is used, the method for determining amounts of principal or interest; (3) the maturity date(s); (4) the interest rate(s) (which may be fixed or variable), if any; (5) the date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest; (6) the manner of paying principal or interest; (7) the place or places where principal and interest will be payable; (8) the terms of any mandatory or optional redemption by the Company, including the terms of any sinking fund; (9) the terms of any redemption at the option of Holders; (10) whether such New Unsecured Securities are to be issuable as registered New Unsecured Securities, bearer New Unsecured Securities, or both, and whether and upon what terms any registered New Unsecured Securities may be exchanged for bearer New Unsecured Securities and vice versa; (11) whether such New Unsecured Securities are to be represented in whole or in part by a New Unsecured Security in global form and, if so, the identity of the depository for any global New Unsecured Security; (12) any tax indemnity provisions; (13) if the New Unsecured Securities provide that payments of principal or interest may be made in a currency other than that in which New Unsecured Securities are denominated, the manner for determining such payments; (14) the portion of principal payable upon acceleration of a Discounted Security (as defined below); (15) whether and upon what terms New Unsecured Securities may be defeased; (16) any events of default or restrictive cove- nants in addition to or in lieu of those set forth in the Indenture; (17) provisions for electronic issuance of New Unse- cured Securities or for New Unsecured Securities in uncertificated form; (18) the terms, if any, upon which the New Unsecured Securities will be convertible into or exchangeable for other securities or other property of the Company or another person; and (19) any additional provisions or other special terms not inconsistent with the provisions of the Indenture, including any terms that may be required or advis- able under United States laws or regulations, or advisable in connection with the marketing of the New Unsecured Securities. The New Unsecured Securities of a series may be issued in whole or in part in the form of one or more global New Unsecured Securities that will be deposited with, or on behalf of, the Depository. Global New Unsecured Securities may be issued in registered, bearer or uncertificated form and in either temporary or permanent form. Unless and until it is exchanged in whole or in part for New Unsecured Securities in definitive form, a global New Unsecured Security may not be transferred except as a whole by the Depository to a nominee or -16- a successor depository (Indenture Section 2.12). See "Book-Entry Only System". New Unsecured Securities of any series may be issued as registered New Unsecured Securities, bearer New Unsecured Securities or uncertificated New Unsecured Securities, as spec- ified in the terms of the series. Unless otherwise indicated in the Prospectus Supplement, registered New Unsecured Securi- ties will be issued in denominations of $1,000 and whole multi- ples thereof and bearer New Unsecured Securities will be issued in denominations of $5,000 and whole multiples thereof. One or more global New Unsecured Securities will be issued in a denomination or aggregate denominations equal to the aggregate principal amount of outstanding New Unsecured Securities of the series to be represented by such global New Unsecured Security or New Unsecured Securities. In connection with its original issuance, no bearer New Unsecured Security will be offered, sold, resold, or mailed or otherwise delivered to any location in the United States and a bearer New Unsecured Security in definitive form may be delivered in connection with its original issuance only if the person entitled to receive the bearer New Unsecured Security furnishes certification as described in United States Treasury regulation section 1.163-5(c)(2)(i)(D)(iii) (Indenture Section 2.04). For purposes of this Prospectus, unless otherwise indicated, "United States" means the United States of America (including the States and the District of Columbia), its terri- tories and possessions and all other areas subject to its jurisdiction. "United States person" means a citizen or resi- dent of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States or a political subdivision thereof or any estate or trust the income of which is subject to United States fed- eral income taxation regardless of its source. Any special United States federal income tax considerations applicable to bearer New Unsecured Securities will be described in the Pro- spectus Supplement relating thereto. To the extent set forth in the Prospectus Supplement, except in special circumstances set forth in the Indenture, principal and interest on bearer New Unsecured Securities will be payable only upon surrender of bearer New Unsecured Securi- ties and coupons at a paying agency of the Company located out- side of the United States. During any period thereafter for which it is necessary in order to conform to United States tax -17- law or regulations, the Company will maintain a paying agent outside the United States to which the bearer New Unsecured Securities and coupons may be presented for payment and will provide the necessary funds therefor to the paying agent upon reasonable notice. Registration of transfer of registered New Unsecured Securities may be requested upon surrender thereof at any agency of the Company maintained for the purpose and upon ful- fillment of all other requirements of the agent. Bearer New Unsecured Securities and the coupons related thereto will be transferable by delivery. New Unsecured Securities may be issued under the Indenture as Discounted New Unsecured Securities to be offered and sold at a substantial discount from the principal amount thereof. Special United States federal income tax and other considerations applicable thereto will be described in the Pro- spectus Supplement relating to such Discounted New Unsecured Securities. "Discounted New Unsecured Security" means a New Unsecured Security where the amount of principal due upon acceleration is less than the stated principal amount. Certain Covenants The New Unsecured Securities will not be secured by any properties or assets and will represent unsecured debt of the Company. Unless otherwise indicated in a Prospectus Supple- ment, the covenants contained in the Indenture and the New Unsecured Securities do not afford holders of the New Unsecured Securities special protection in the event of a highly lever- aged or other transaction involving the Company that may adversely affect holders of the New Unsecured Securities. Successor Obligor Unless the Bond Resolution establishing the terms of a series otherwise provides, the Company will not consolidate with or merge into, or transfer all or substantially all of its assets to, any person, unless (1) the person is organized under the laws of the United States or a State thereof; (2) the person assumes by supplemental indenture all the obligations of the Company under the Indenture, the New Unsecured Securities and any coupons; (3) all required approvals of any regulatory body having jurisdiction over the transaction shall have been obtained; and (4) -18- immediately after the transaction no Default (as defined) exists. The successor will be substituted for the Company, and thereafter all obligations of the Company under the Inden- ture, the New Unsecured Securities and any coupons shall termi- nate (Indenture Section 5.01). Exchange of New Unsecured Securities Registered New Unsecured Securities may be exchanged for an equal aggregate principal amount of registered New Unse- cured Securities of the same series and date of maturity in such authorized denominations as may be requested upon surren- der of the registered New Unsecured Securities at an agency of the Company maintained for such purpose and upon fulfillment of all other requirements of the agent. To the extent permitted by the terms of a series of New Unsecured Securities authorized to be issued in registered form and bearer form, bearer New Unsecured Securities may be exchanged for an equal aggregate principal amount of registered or bearer New Unsecured Securities of the same series and date of maturity in such authorized denominations as may be requested upon surrender of the bearer New Unsecured Securities with all unpaid coupons relating thereto (except as may other- wise be provided in the New Unsecured Securities) at an agency of the Company maintained for such purpose and upon fulfillment of all other requirements of the agent (Indenture Section 2.07). As of the date of this Prospectus, it is expected that the terms of a series of New Unsecured Securities will not permit regis- tered New Unsecured Securities to be exchanged for bearer New Unsecured Securities. Defaults and Remedies Unless the bond resolution establishing the terms of a series otherwise provides, an "Event of Default" with respect to a series of New Unsecured Securities will occur if: (1) the Company defaults in any payment of interest on any New Unsecured Securities of the series when the same becomes due and payable and the Default contin- ues for a period of 60 days; (2) the Company defaults in the payment of the principal of any New Unsecured Securities of the series when -19- the same becomes due and payable at maturity or upon redemption, acceleration or otherwise; (3) the Company defaults in the payment or satisfaction of any sinking fund obligation with respect to any New Unsecured Securities of a series as required by the resolution establishing such series and the Default continues for a period of 60 days; (4) the Company defaults in the performance of any of its other agreements applicable to the series and the Default continues for 90 days after the notice speci- fied below; (5) the Company pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian for it or for all or substantially all of its prop- erty, or (D) makes a general assignment for the benefit of its creditors; (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company in an involun- tary case, (B) appoints a Custodian for the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 60 days; or (7) any other Event of Default provided for in the series. -20- The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law. A Default under clause (4) is not an Event of Default until the Unsecured Securities Trustee or the Holders of at least 25% in principal amount of the series notify the Company of the Default and the Company does not cure the Default within the time specified after receipt of the notice (Indenture Section 6.01). The Unsecured Securities Trustee may require indem- nity satisfactory to it before it enforces the Indenture or the New Unsecured Securities of the series. Subject to certain limitations, holders of a majority in principal amount of the New Unsecured Securities of the series may direct the Unsecured Securities Trustee in its exercise of any trust or power (Indenture Section 6.05). The Unsecured Securities Trustee may with- hold from the New Unsecured Securityholders of the series notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their interest (Indenture Section 7.04). The Indenture does not have a cross-default provi- sion. Thus, unless the bond resolution providing for a new series otherwise provides, a default by the Company on any other debt (including any other series of New Unsecured Securi- ties) would not constitute an Event of Default. Amendments and Waivers Unless the bond resolution establishing the terms of a series otherwise provides, the Indenture and the New Unse- cured Securities or any coupons of the series may be amended, and any default may be waived as follows: The New Unsecured Securities and the Indenture may be amended with the consent of the holders of a majority in principal amount of the New Unse- cured Securities of all series affected voting as one class. A default on a series may be waived with the consent of the hold- ers of a majority in principal amount of the New Unsecured Securities of the series. However, without the consent of each New Unsecured Securityholder affected, no amendment or waiver may (1) reduce the amount of New Unsecured Securities whose holders must consent to an amendment or waiver, (2) reduce the interest on or change the time for payment of interest on a New Unsecured Security, (3) change the fixed maturity of any New Unsecured Security, (4) reduce the principal of any non-Discounted New Unsecured Security or reduce the amount of -21- principal of any Discounted New Unsecured Security that would be due on acceleration thereof, (5) change the currency in which principal or interest on a New Unsecured Security is pay- able, (6) make any change that materially adversely affects the right to convert any New Unsecured Security, or (7) waive any default in payment of interest on or principal of a New Unsecured Secu- rity. Without the consent of any New Unsecured Securityholder, the Indenture, the New Unsecured Securities or any coupons may be amended to cure any ambiguity, omission, defect or inconsis- tency; to provide for assumption of Company obligations to New Unsecured Securityholders in the event of a merger or consoli- dation requiring such assumption; to provide that specific pro- visions of the Indenture not apply to a series of New Unsecured Securities not previously issued; to create a series and estab- lish its terms; to provide for a separate trustee for one or more series; or to make any change that does not materially adversely affect the rights of any New Unsecured Securityholder (Indenture Article 9). Legal Defeasance and Covenant Defeasance New Unsecured Securities of a series may be defeased in accordance with their terms and, unless the bond resolution establishing the terms of the series otherwise provides, as set forth below. The Company at any time may terminate as to a series all of its obligations (except for certain obligations with respect to the defeasance trust and obligations to regis- ter the transfer or exchange of a New Unsecured Security, to replace destroyed, lost or stolen New Unsecured Securities and coupons and to maintain agencies in respect of the New Unse- cured Securities) with respect to the New Unsecured Securities of the series and any related coupons and the Indenture ("legal defeasance"). The Company may at any time terminate as to a series its obligations with respect to the New Unsecured Secu- rities under any restrictive covenants which may be applicable to a particular series ("covenant defeasance"). The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option. If the Company exercises its legal defeasance option, a series may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option, a series may not be accelerated by reference to any restrictive covenant which may be applicable to a particular series so defeased under the terms of the series. -22- To exercise either defeasance option as to a series, the Company must deposit in trust (the "defeasance trust") with the Unsecured Securities Trustee money or U.S. Government Obli- gations for the payment of principal, premium, if any, and interest on the New Unsecured Securities of the series to redemption or maturity and must comply with certain other con- ditions. In particular, the Company must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain or loss to holders for Federal income tax purposes. "U.S. Government Obligations" are direct obligations of the United States of America which have the full faith and credit of the United States of America pledged for payment and which are not callable at the issuer's option, or certificates repre- senting an ownership interest in such obligations (Indenture Article 8). BOOK-ENTRY ONLY SYSTEM The New Bonds and New Unsecured Securities of any series may be issued initially in the form of one or more glo- bal securities under a book-entry only system operated by a securities depository. Unless otherwise specified in the Pro- spectus Supplement, The Depository Trust Company ("DTC") will act as securities depository for the New Bonds and New Unse- cured Securities, which would be registered in the name of Cede & Co., as registered securityholder and nominee for DTC. Indi- vidual purchases of Book-Entry Interests (as herein defined) in any such New Bonds or New Unsecured Securities will be made in book-entry form. Purchasers of Book-Entry Interests in such New Bonds or New Unsecured Securities will not receive certifi- cates representing their interests in such New Bonds or New Unsecured Securities. So long as Cede & Co., as nominee of DTC, is the securityholder, references herein to holders of the New Bonds or New Unsecured Securities or registered owners will mean Cede & Co., rather than the owners of Book-Entry Interests in New Bonds or New Unsecured Securities. DTC is a limited purpose trust company organized under the banking laws of the State of New York and a "banking organization" within the meaning of that law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clear- ing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities deposited by its participants (the "DTC Participants") and facilitates the settlement of securities transactions among DTC Participants in -23- such securities through electronic computerized book-entry changes in accounts of the DTC Participants, thereby eliminat- ing the need for physical movement of securities certificates. Direct DTC Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (including, possibly, the under- writers with respect to the New Bonds or New Unsecured Securi- ties), together with the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc., own DTC. Access to the DTC system is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a DTC Participant, either directly or indi- rectly (the "Indirect Participants"). DTC Participants purchasing Book-Entry Interests (as defined below) in any New Bonds or New Unsecured Securities will not receive certificates. Each DTC Participant will receive a credit balance in the records of DTC in the amount of such DTC Participant's interest in such New Bonds or New Unse- cured Securities, which will be confirmed in accordance with DTC's standard procedures. The ownership interest of each actual purchaser of a Book-Entry Interest in a New Bond or New Unsecured Security (the "Book-Entry Interests") will be recorded through the records of the DTC Participant or through the records of the Indirect Participant. Owners of Book-Entry Interests should receive from the DTC Participant or Indirect Participant a written confirmation of their purchase providing details of the Book-Entry Interests acquired. Transfers of Book-Entry Interests will be accomplished by book entries made by the DTC Participants or Indirect Participants who act on behalf of the owners of Book-Entry Interests. Owners of Book-Entry Interests will not receive certificates representing their ownership of Book-Entry Interests with respect to any New Bonds or New Unsecured Securities except as described below upon the resignation of DTC. Under the Mortgage and Indenture, payments made by the Bond Trustee or the Unsecured Securities Trustee (collec- tively, the "Trustees" and individually, the "Trustee") to DTC or its nominee will satisfy the Company's obligations under the Mortgage or Indenture, as the case may be, to the extent of the payments so made. Owners of Book-Entry Interests will not be or be considered by the Company or the respective Trustee to be, and will not have any rights as, holders of New Bonds under the Mortgage or New Unsecured Securities under the Indenture, as the case may be. -24- NEITHER THE COMPANY NOR ANY TRUSTEE UNDER THE MORT- GAGE AND INDENTURE WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO ANY DTC PARTICIPANT, INDIRECT PARTICIPANT OR ANY OWNER OF A BOOK-ENTRY INTEREST OR ANY OTHER PERSON NOT SHOWN ON THE REGIS- TRATION BOOKS OF SUCH TRUSTEE AS BEING A HOLDER OF NEW BONDS OR NEW UNSECURED SECURITIES WITH RESPECT TO: (1) ANY NEW BONDS OR NEW UNSECURED SECURITIES, AS THE CASE MAY BE; (2) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT OR INDIRECT PARTICIPANT; (3) THE PAYMENT BY DTC OR ANY DTC PAR- TICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY OWNER OF A BOOK-ENTRY INTEREST IN RESPECT OF THE PRINCIPAL OR REDEMP- TION PRICE OF OR INTEREST ON SUCH NEW BONDS OR NEW UNSECURED SECURITIES; (4) THE DELIVERY BY DTC OR ANY DTC PARTICIPANT OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY OWNER OF A BOOK-ENTRY INTEREST WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE MORTGAGE OR INDENTURE TO BE GIVEN TO HOLDERS OF NEW BONDS OR NEW UNSECURED SECURITIES; (5) THE SELECTION OF THE OWNERS OF A BOOK-ENTRY INTEREST TO RECEIVE PAYMENT IN THE EVENT OF ANY PAR- TIAL REDEMPTION OF ANY NEW BONDS OR NEW UNSECURED SECURITIES; OR (6) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR ITS NOMINEE AS HOLDER OF NEW BONDS OR NEW UNSECURED SECURITIES. Principal and redemption price of, and interest pay- ments on, New Bonds and New Unsecured Securities registered in the name of DTC or its nominee will be made to DTC or such nom- inee, as registered owner of such New Bonds or New Unsecured Securities. DTC is responsible for disbursing such payments to the appropriate DTC Participants and such DTC Participants, and any Indirect Participants, are in turn responsible for disburs- ing the same to the owners of Book-Entry Interests. Unless it has reason to believe it will not receive payment, DTC's cur- rent practice is to credit the accounts of the DTC Participants on a payment date in accordance with their respective holdings shown on the records of DTC. Payments by DTC Participants and Indirect Participants to owners of Book-Entry Interests will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of cus- tomers in bearer form or registered in "street name", and will be the responsibility of such DTC Participant or Indirect Par- ticipant and not of DTC, the Company or the respective Trustee, subject to any statutory and regulatory requirements as may be in effect from time to time. DTC Participants and Indirect Participants carry the "position" of the ultimate Book-Entry Interest owner on their records, and will be responsible for providing information to the ultimate Book-Entry Interest owner as to the New Bonds or -25- New Unsecured Securities in which the Book-Entry Interest is held, debt service payments received, and other information. Each person for whom a DTC Participant or Indirect Participant acquires an interest in New Bonds or New Unsecured Securities, as nominee, may desire to make arrangements with such DTC Par- ticipant or Indirect Participant to receive a credit balance in the records of such DTC Participant or Indirect Participant, to have all notices of redemption or other communications to or by DTC which may affect such persons forwarded in writing by such DTC Participant or Indirect Participant, and to have notifica- tion made of all debt service payments. Purchases, transfers and sales of Book-Entry Inter- ests by the ultimate Book-Entry Interest owners may be made through book entries made by DTC Participants or Indirect Par- ticipants or others who act for the ultimate Book-Entry Inter- est owner. The Bonds Trustee, the Unsecured Securities Trus- tee, the Company and the underwriters, as such, have no role in those purchases, transfers or sales. Owners of Book-Entry Interests may be charged a sum sufficient to cover any tax, fee, or other governmental charge that may be imposed in relation to any transfer or exchange of a Book-Entry Interest. Each Trustee will recognize and treat DTC (or any successor securities depository) or its nominee as the holder of New Bonds and New Unsecured Securities registered in its name or the name of its nominee for all purposes, including payment of debt service, notices, enforcement of remedies and voting. Under DTC's current practice, a proxy will be given to the DTC Participants holding Book-Entry Interests in New Bonds and New Unsecured Securities in connection with any matter on which holders of such New Bonds or New Unsecured Securities are asked to vote or give their consent. Crediting of debt service payments and transmittal of notices and other communications by DTC to DTC Participants, by DTC Participants to Indirect Par- ticipants and by DTC Participants and Indirect Participants to the ultimate Book-Entry Interest owners are the responsibility of those persons and will be handled by arrangements among them and are not the responsibility of either Trustee, the Company or any underwriter, as such. Each Trustee, so long as a book-entry system is used for any series of New Bonds or New Unsecured Securities, will send any notice of redemption and any other notices required by the Mortgage or Indenture to be sent to holders of such New -26- Bonds or New Unsecured Securities, respectively, only to DTC (or such successor securities depository) or its nominee. Any failure of DTC to advise any DTC Participant, or of any DTC Participant or Indirect Participant to notify the Book-Entry Interest owner, of any such notice and its content or effect will not affect the validity of the redemption of the New Bonds or New Unsecured Securities called for redemption, or any other action premised on that notice. In the event of a call for redemption, the Trustee's notification to DTC will initiate DTC's standard call process, and, in the event of a partial call, its lottery process by which the call will be randomly allocated to DTC Participants holding positions in the New Bonds or New Unsecured Securities to be redeemed. When DTC and DTC Participants allocate the call for redemption, the owners of the Book-Entry Interests that have been called should be notified by the broker or other person responsible for main- taining the records of those interests and subsequently cred- ited by that person with the proceeds once such New Bonds or New Unsecured Securities are redeemed. The Company, the Bond Trustee, the Unsecured Securi- ties Trustee and any underwriter or agent cannot and do not give any assurances that DTC, DTC Participants or others will distribute payments of debt service on New Bonds or New Unse- cured Securities made to DTC or its nominee as the registered owner, or any redemption or other notices, to the Book-Entry Interest owners, or that they will do so on a timely basis, or that DTC will serve and act in the manner described in this Prospectus. The Company understands that the current "Rules" applicable to DTC are on file with the Commission, and that the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. If DTC is at any time unwilling or unable to continue as depository, and a successor depository is not appointed by the Company within 90 days, the Company will issue individual certificates to owners of Book-Entry Interests in exchange for the New Bonds or New Unsecured Securities held by DTC or its nominee, as the case may be. In such instance, an owner of a Book-Entry Interest will be entitled to physical delivery of certificates equal in principal amount to such Book-Entry Interest and to have such certificates registered in its name. Individual certificates so issued will be issued in denomina- tions of $1,000 or any multiple thereof. -27- Neither the Company, the Bond Trustee, the Unsecured Securities Trustee nor any underwriter makes any representation as to the accuracy of the above description of DTC's business, organization and procedures, which is based upon information furnished by DTC. PLAN OF DISTRIBUTION The Company may sell the Securities in any of the following ways: (i) through underwriters or dealers; (ii) directly to one or more purchasers; or (iii) through agents. The applicable Prospectus Supplement will set forth the terms of the offering of any Securities, including the names of any underwriters or agents, the purchase price of such Securities and the proceeds to the Company from such sale, any underwrit- ing discounts and other items constituting underwriters' com- pensation, any initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which such Securities may be listed. If underwriters are used in the sale of the Securi- ties, such Securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Such Securities may be offered to the public either through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Unless otherwise set forth in the applicable Prospectus Supplement, the obligations of the underwriters to purchase such Securities will be subject to certain conditions precedent, and the under- writers will be obligated to purchase all of such Securities if any of such Securities are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Only underwriters named in a Prospectus Supplement are deemed to be underwriters in connection with the Securities offered thereby. Securities also may be sold directly by the Company or through agents designated by the Company from time to time. Any agent involved in the offer or sale of Securities will be named and any commissions payable by the Company to such agent will be set forth in the applicable Prospectus Supplement. Unless otherwise indicated in the applicable Prospectus Supple- ment, any such agent will act on a best efforts basis for the period of its appointment. -28- If so indicated in a Prospectus Supplement with respect to the Securities, the Company will authorize agents, underwriters or dealers to solicit offers by certain institu- tions to purchase such Securities from the Company at the pub- lic offering price set forth in the Prospectus Supplement pur- suant to Delayed Delivery Contracts ("Contracts") providing for payment and delivery on the date or dates stated in the Pro- spectus Supplement. Each Contract will be for an amount not less than, and the aggregate amount of the Securities sold pur- suant to the Contracts shall be not less nor more than, the respective amounts stated in the Prospectus Supplement. Insti- tutions with whom the Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pen- sion funds, investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject to the approval of the Company. The Contracts will not be subject to any conditions except (i) the purchase by an institution of the Securities covered by its Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and (ii) if the Securities are being sold to under- writers, the Company shall have sold to such underwriters the total amount of the Securities less the amount thereof covered by the Contracts. The underwriters will not have any responsi- bility in respect of the validity or performance of the Contracts. If dealers are utilized in the sale of any Securi- ties, the Company will sell such Securities to the dealers, as principal. Any dealer may then resell such Securities to the public at varying prices to be determined by such dealer at the time of resale. The name of any dealer and the terms of the transaction will be set forth in the Prospectus Supplement with respect to such Securities being offered thereby. It has not been determined whether any of the Securi- ties will be listed on a securities exchange. Underwriters will not be obligated to make a market in any of the Securi- ties. The Company cannot predict the activity of trading in, or liquidity of, any of the Securities. Any underwriters, dealers or agents participating in the distribution of Securities may be deemed to be underwriters and any discounts or commissions received by them on the sale or resale of Securities may be deemed to be underwriting dis- counts and commissions under the Securities Act of 1933, as amended (the "Securities Act"). Agents and underwriters may be -29- entitled under agreements entered into with the Company to indemnification by the Company against certain liabilities, including liabilities under the Securities Act, or to contribu- tion with respect to payments that the agents, or underwriters may be required to make in respect thereof. Agents and under- writers may be customers of, engaged in transactions with, or perform service for, the Company or its affiliates in the ordi- nary course of business. LEGAL OPINIONS Certain legal matters in connection with the Securi- ties are being passed upon for the Company by Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., Amarillo, Texas, and Cahill Gordon & Reindel, a partnership including a professional corpo- ration, New York, New York. Cahill Gordon & Reindel is not passing upon the incorporation of the Company and is relying upon the opinions of Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P. as to matters of New Mexico and Texas law; Rainey, Ross, Rice & Binns, Oklahoma City, Oklahoma as to matters of Oklahoma law; and Foulston & Siefkin, Topeka, Kansas as to matters of Kansas law. Gary W. Wolf, a partner in the law firm of Cahill Gordon & Reindel, is a director of the Company. EXPERTS The consolidated financial statements of Southwestern Public Service Company and subsidiaries as of August 31, 1995 and 1994 and for the years then ended included in the Company's 1995 Form 10-K, which is incorporated herein by reference, have been audited by Deloitte & Touche LLP ("Deloitte & Touche"), independent certified public accountants, as stated in their report, which is also 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. With respect to any unaudited interim financial information included in the Company's quarterly reports on Form 10-Q that are or will be incorporated herein by reference, Deloitte & Touche applies limited procedures in accordance with professional standards for reviews of such information. As stated in any of its reports that are included in the Company's quarterly reports on Form 10-Q that are or will be incorporated herein by reference, Deloitte & Touche did not audit and did -30- not express an opinion on such interim financial information. Accordingly, the degree of reliance on any of Deloitte & Tou- che's reports on such information should be restricted in light of the limited nature of the review procedures applied. Deloitte & Touche is not subject to the liability provisions of Section 11 of the Securities Act for any of its reports on such unaudited interim financial information because those reports are not "reports" or a "part" of the Registration Statement filed under the Securities Act with respect to the New Pre- ferred Stock or the New Bonds or New Unsecured Securities pre- pared or certified by an accountant within the meaning of Sec- tions 7 and 11 of the Securities Act. The consolidated financial statements of Southwestern Public Service Company and subsidiaries for the year ended August 31, 1993 included in the Company's 1995 Form 10-K, which is incorporated herein by reference, are incorporated herein in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, included in the 1995 Form 10-K, and upon the authority of that firm as experts in accounting and auditing. To the extent that a firm of certified public accoun- tants audits and reports on the financial statements of the Company issued at future dates, and consents to the use of their report thereon, such financial statements also will be incorporated by reference herein in reliance upon their report and said authority. The statements and legal conclusions as to all mat- ters of law in the Company's 1995 Form 10-K, the November Quar- terly Report, the February Quarterly Report and this Prospectus (except as to matters of Kansas and Oklahoma law in such docu- ments) have been reviewed by Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P. Statements and legal conclusions as to matters of Oklahoma law in such documents have been reviewed by Rainey, Ross, Rice & Binns. Statements and legal conclusions as to matters of Kansas law in such documents have been reviewed by Foulston & Siefkin. All such statements and legal conclusions are set forth in such documents and incorporated by reference herein or set forth herein in reliance upon said firms, respec- tively, as experts. No dealer, salesman, or any other SOUTHWESTERN PUBLIC person has been authorized to give SERVICE COMPANY any information or to make any representations other than those contained in this Prospectus, in- cluding any prospectus supplement in connection with the offer con- tained in this Prospectus, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company or any underwriter, dealer, or agent. This Prospectus does not constitute an offer to sell or a solicitation of an offer $220,000,000 to buy any of these securities in any jurisdiction to any person to DEBT SECURITIES whom it is unlawful to make such offer or solicitation in such juris- and diction. Neither the delivery of this Prospectus nor any sale made PREFERRED STOCK hereunder shall, under any circum- stances, create any implication that there has been no change in the affairs of the Company since the date hereof. __________ _______________ PROSPECTUS TABLE OF CONTENTS Page Available Information............... 3 Incorporation of Certain Documents by Reference............ 3 The Company......................... 4 Use of Proceeds..................... 5 Earnings Ratios..................... 5 Description of New Preferred Stock............................. 5 Description of New Bonds............ 9 Description of New Unsecured Securities........................ 14 Book-Entry Only System ............. 22 Plan of Distribution................ 27 Legal Opinions...................... 29 Dated , 1996 Experts............................. 29 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. Securities and Exchange Commission Registration Fee .............................. $ 51,724 Counsel Fees and Expenses ........................ 200,000(1) Services of Independent Accountants .............. 40,000(1) Trustee's Fees and Expenses ...................... 25,000(1)(2) Printing Expenses, including Engraving ........... 55,000(1) Debt Securities Rating Fees....................... 85,000(1)(2) Blue Sky Fees and Expenses ....................... 10,000(1) Transfer Agent and Registrar Fees................. 7,500(1)(3) Miscellaneous Expenses ........................... 10,776(1) -------- Total ................................ $485,000(1) ____________________ (1) Estimated assuming one Prospectus Supplement. (2) Required only if Debt Securities are issued. (3) Required only if New Preferred Stock is issued. Item 15. Idemnification of Directors and Officers. Section 53-11-4.1 of the New Mexico Business Corpora- tion Act (the "NMBCA") empowers a corporation to indemnify any officer or director against judgments, penalties, fines, set- tlements, and reasonable expenses actually incurred by the per- son in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, adminis- trative, or investigative, if the person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to a criminal proceeding, had no reasonable cause to believe the person's conduct was unlawful. This section empowers a corpo- ration to maintain insurance or furnish similar protection, including, but not limited to, providing a trust fund, a letter of credit, or self-insurance, on behalf of any officer or director against any liability asserted against the person in such capacity whether or not the corporation would have the power to indemnify the person against such liability under the provisions of this section. The indemnification authorized by Section 53-11-4.1 is not exclusive of any other rights to which an officer or II-1 director may be entitled under the articles of incorporation, the bylaws, an agreement, a resolution of shareholders or directors or otherwise. Article Sixth of the Restated Articles of Incorpora- tion of the Company provides that a director of the Company shall not be personally liable to the Company or to the share- holders for monetary damages for a breach of fiduciary duty as a director unless such director has breached or failed to per- form the duties of his or her office in accordance with the NMBCA, and the breach or failure to perform constitutes negli- gence, willful misconduct, or recklessness. Article IV of the Bylaws of the Company requires the Company, to the fullest extent permitted by the NMBCA, to pay or reimburse expenses, liabilities, and losses incurred by an officer or director involved in any action, suit, or proceed- ing, whether civil, criminal, administrative, or investigative by reason of the fact that such person is or was serving as an officer or director of the Company. The Bylaws also require the Company to pay or reim- burse all covered expenses to an officer or director promptly upon receipt of a written claim and, where the claimant seeks an advancement of expenses, an undertaking by or on behalf of the person to repay such amounts if it should ultimately be determined by a court of final jurisdiction that such person is not entitled to indemnification. The Company has entered into indemnity agreements with each officer and director of the Company. These contracts provide for the advancement of expenses (including attorneys' fees) incurred or to be incurred by an officer or director in connection with a proceeding. The contracts also provide for indemnification of such persons against expenses, liabilities, and losses. Pursuant to each director's indemnity agreement, the Company keeps in effect a letter of credit in the face amount of $5,000,000 obtained from a commercial bank for the benefit of all directors who are a party to an indemnity agreement. A director who has incurred or may incur expenses in connection with a proceeding prior to the final disposition of such a pro- ceeding for any reason may request an independent trustee to draw upon the letter of credit for the payment or advancement of such expenses. Upon such request, the trustee will draw upon the letter of credit and deliver such funds to such director. II-2 The Company is insured up to $25,000,000 against loss in excess of $200,000 because of any claim made against the Company or its officers or directors and alleged to have been caused by any negligent act, error, omission, or breach of duty by its officers or directors. The insurance is subject to cer- tain exclusions. Item 16. Exhibits. Reference is made to the Exhibit Index filed as part of this Registration Statement. 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 Sec- tion 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Regis- tration 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 volume of securities being offered (if the total dollar value of securities offered would not exceed that which was registered) and any devia- tion from the low or high end of the estimated maxi- mum 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% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effec- tive registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any mate- rial change to such information in the Registration Statement. II-3 Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and 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 (the "1934 Act") that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any lia- bility under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration State- ment 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. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Registrant's annual report pursuant to Sec- tion 13(a) or Section 15(d) of the 1934 Act that is incorpo- rated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the secu- rities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, offic- ers and controlling persons of the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securi- ties and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, there- fore, unenforceable. In the event that a claim for indemnifi- cation 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 control- ling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against pub- lic policy as expressed in the Securities Act and will be gov- erned by the final adjudication of such issue. II-4 The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regu- lations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, Southwestern Public Service Company, the Reg- istrant, 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, thereunder duly authorized, in the City of Amarillo, and the State of Texas, on the 3rd day of June, 1996. SOUTHWESTERN PUBLIC SERVICE COMPANY (Registrant) By: /s/ Bill D. Helton -------------------------------- Bill D. Helton Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date Principal Executive and Chairman of the June 3, 1996 Financial Officer and Board and Chief Director: Executive Officer /s/ Bill D. Helton - -------------------------- Bill D. Helton Principal Accounting Officer: Executive Vice June 3, 1996 President, Accounting and Corporate Development /s/ Doyle R. Bunch, II - ---------------------------- Doyle R. Bunch, II Directors: Gene H. Bishop* ) C. Coney Burgess* ) J. C. Chambers* ) Danny H. Conklin* ) Giles M. Forbess* ) Directors June 3, 1996 R. R. Hemminghaus* ) Don Maddox* ) J. Howard Mock* ) Shirley Bird Perry* ) David M. Wilks* ) Gary W. Wolf* ) *The undersigned, by signing his name hereto, does sign and execute this Registration Statement pursuant to the Powers of Attorney executed by the above-named officers and directors of the Company and which are being filed herewith with the Securities and Exchange Commission on behalf of such officers and directors. By: /s/ Bill D. Helton ----------------------------- Bill D. Helton Attorney-in-Fact INDEX TO EXHIBITS Exhibit Number Exhibit - ------- ------- 1(a) - Form of Standard Purchase Provisions relating to the New Preferred Stock. 1(b) - Form of Standard Purchase Provisions relating to the New Bonds. 1(c) - Form of Standard Purchase Provisions relating to the New Unsecured Securities. 3(a) - Restated Articles of Incorporation effective February 1 (exhibit 3(i) Form 8-K filed February 26, 1996).* 3(b) - Bylaws (exhibit 3(e) Form 10-K for year ended August 31, 1991).* 4(a) - First Mortgage Indenture dated August 1, 1946 (exhibit 7-A Registration No. 2-6910).* 4(b) - Supplemental Indentures dated: December 1, 1946 (exhibit 7-B Registration No. 2-6910); November 1, 1947 (exhibit 7-C Registration No. 2-7356); January 20, 1948 (exhibit 7-G Registra- tion No. 2-7356); February 1, 1949 (exhibit 7-E Registration No. 2-7833); December 1, 1949 (exhibit 7-F Registration No. 2-8235); February 1, 1950 (exhibit 7-G Registration No. 2-8754); January 1, 1951 (exhibit 7-H Registration No. 2-8754); January 1, 1952 (exhibit 4-J Registra- tion No. 2-9379); February 1, 1953 (exhibit 4-J Registration No. 2-10639); February 1, 1954 (exhibit 4-K Registration No. 2-10639); June 1, 1954 (exhibit 4-M Registration No. 2-10992); Feb- ruary 1, 1956 (exhibit 4-N Registration No. 2-12252); October 1, 1959 (exhibit A Form 8-K for November 1959); February 1, 1961 (exhibit 4-O Registration No. 2-17578); January 1, 1963 (exhibit 2-P Registration No. 2-21020); February 1, 1964 (exhibit 2-Q Registration No. 2-22089); February 1, 1965 (exhibit 2-R Registration No. 2-23178); February 1, 1967 (exhibit 2-S Registra- tion No. 2-25983); October 1, 1970 (exhibit 2-T Registration No. 2-38566); May 1, 1971 (exhibit 3-U Registration No. 2-40266); October 1, 1972 (exhibit 2-V Registration No. 2-45965); February 1, 1975 (exhibit 3 Form 8-K for December 1975); February 1, 1976 (exhibit 1 Form 8-K for March 1976); February 9, 1977 (exhibit 2-Y Registration Exhibit Number Exhibit - ------- ------- No. 2-58209); March 1, 1977 (exhibit 1 Form 10-Q for quarter ended May 31, 1977); March 1, 1978 (exhibit 1 Form 10-Q for quarter ended May 31, 1978); March 1, 1979 (exhibit b(28) Registration No. 2-64022); April 1, 1979 (exhibit 1 Form 10-Q for quarter ended May 31, 1979); June 1, 1980 (exhibit 2 Form 10-Q for quarter ended May 31, 1980); two dated October 1, 1981 (exhibit 4(c) Form 8-K dated February 5, 1982); July 1, 1982 (exhibit 1 Form 8-K dated October 22, 1982); two dated April 1, 1983 (exhibit 4(a) Form 10-Q for quarter ended May 31, 1983); February 1, 1985 (exhibit 4(c) Form 10-K for 1985); April 1, 1986 (exhibit 4(a) Form 10-Q for quarter ended February 28, 1986); June 1, 1987 (exhibit 4(h) Registration No. 33-4134); two dated July 15, 1992 (exhibit 4(a) Form 10-K for fiscal year ended August 31, 1992); two dated December 1, 1992 (exhibit 4 Form 10-Q for quarter ended February 28, 1993); and February 15, 1995 (exhibit 4 Form 10-Q for quarter ended February 28, 1995).* 4(c) - Supplemental Indenture date March 1, 1996. 4(d) - Form of Supplemental Indenture (form of New Bond included in Supplemental Indenture). 4(e) - Form of Specimen Certificate representing the New Preferred Stock. 4(f) - Form of Indenture relating to the New Unsecured Securities, including Forms of New Unsecured Securities. 5 - Opinion of Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., counsel for the Company. 12 - Statements re Computation of Ratios of Earnings to Fixed Charges and Ratio of Earnings to Com- bined Fixed Charges and Preferred Dividend Requirements (exhibit 12 Form 10-K for fiscal year ended August 31, 1995 and exhibit 12 Form 10-Q for quarter ended February 29, 1996).* 15 - Letter re Unaudited Interim Financial Information. 23(a) - Consent of Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P. (included in Exhibit 5). 23(b) - Consent of Foulston & Siefkin. 23(c) - Consent of Rainey, Ross, Rice & Binns. 23(d) - Consent of Deloitte & Touche LLP, independent certified public accountants. -2- Exhibit Number Exhibit - ------- ------- 23(e) - Consent of KPMG Peat Marwick LLP, independent certified public accountants. 24 - Powers of Attorney. 25(a) - Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 (on Form T-1) of Chemical Bank, Trustee. 25(b) - Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 (on Form T-1) of Unsecured Securities Trustee (to be filed by amendment or pursuant to Form 8-K). ____________________ * Incorporated herein by reference. -3- EX-1.A 2 FORM OF STANDARD PURCHASE PROVISIONS -- PREFERRED STOCK Exhibit 1(a) SOUTHWESTERN PUBLIC SERVICE COMPANY PREFERRED STOCK STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT SOUTHWESTERN PUBLIC SERVICE COMPANY STANDARD PURCHASE PROVISIONS - PREFERRED STOCK From time to time, Southwestern Public Service Com- pany, a corporation organized and existing under the laws of the State of New Mexico (the "Company") may enter into purchase agreements that provide for the sale of designated securities to the purchaser or purchasers named therein. The standard provisions set forth herein may be incorporated by reference in any such purchase agreement (the "Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." The term "Preferred Stock" shall mean the Pre- ferred Stock of the Company. Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. The Company has filed, in accordance with the provi- sions of the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder (collectively called the "Act"), with the Securities and Exchange Commission (the "Commission"), a registration statement on Form S-3 (including a prospectus), relating to the Company's First Mortgage Bonds, Unsecured Debt Securities and Preferred Stock, which pursuant to Item 12 of Form S-3 incorpo- rates by reference documents which the Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"). Such registration statement has been declared effective by the Commission. Promptly upon the execution of this Agreement, the Company will prepare a prospectus supplement relating to the Preferred Stock to be sold by the Company pursuant to the applicable Purchase Agreement (the "Prospectus Supplement"). The Company has fur- nished to you, for use by the Underwriters (as defined herein) and dealers, copies of one or more preliminary prospectuses and the documents so incorporated therein (each thereof, including the documents so incorporated therein, is herein called the "Preliminary Prospectus"). The terms Registration Statement and Prospectus shall have the meanings ascribed to them in the Purchase Agreement. 1. Introductory. The Company proposes to issue and sell from time to time Preferred Stock registered under the Registration Statement. Each series of Preferred Stock to be sold pursuant to a particular Purchase Agreement will bear div- idends and have the redemption and sinking fund provisions, if any, and other terms determined at the time of the sale and set -2- forth in the Purchase Agreement and the Prospectus Supplement relating to such series of Preferred Stock. The shares of Pre- ferred Stock involved in any such offering are hereinafter referred to as the "Shares," and the firm or firms, as the case may be, which agree to purchase the same are hereinafter referred to as the "Underwriters" of the Shares. The terms "you" and "your" refer to those Underwriters who sign the Pur- chase Agreement either on behalf of themselves only or on behalf of themselves and as representatives of the several Underwriters named in Schedule A thereto, as the case may be. Shares to be purchased by Underwriters are herein referred to as "Underwriters' Shares," and any Shares to be purchased pur- suant to Delayed Delivery Contracts (as defined below) as here- inafter provided are herein referred to as "Contract Shares." 2. Delivery and Payment. The Company will deliver the certificates for the Shares to you for the accounts of the Underwriters at the place specified in the Purchase Agreement, against payment of the purchase price by certified or bank cashier's check in same day or New York Clearing House funds (as agreed to by the parties and specified in the Purchase Agreement) drawn to the order of the Company, at the time set forth in this Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "time of purchase." Unless otherwise provided for in the Purchase Agreement, the certificates for the Underwriters' Shares so to be delivered will be in such denominations and registered in such names as you request in writing not later than 10.00 A.M.,* on the third business day prior to the time of purchase, or, if no such request is received, in the names of the respective Underwriters in the denominations agreed to be purchased by them pursuant to this Agreement. For the purpose of expediting the checking of the certificates for the Under- writers' Shares, the Company agrees to make such certificates available to you at the place specified in the Purchase Agree- ment registered in such names and denominations as you shall have requested not later than 10.00 A.M. on the first business day preceding the time of purchase.* ___________________ * Times mentioned herein are New York City Time. * As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. -3- If any Purchase Agreement provides for sales of Shares pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to purchase Con- tract Shares pursuant to delayed delivery contracts substan- tially in the form of Schedule I attached hereto (the "Delayed Delivery Contracts") with such changes therein as the Company may approve. Delayed Delivery Contracts are to be with insti- tutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies, and educational and charitable institutions. At the time of pur- chase the Company will pay you as compensation, for the accounts of the Underwriters, the compensation set forth in such Purchase Agreement in respect of the principal amount of Contract Shares. The Underwriters will not have any responsi- bility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Shares shall be deducted from the Shares to be purchased by the several Under- writers and the aggregate principal amount of Shares to be pur- chased by each Underwriter shall be reduced pro rata in propor- tion to the principal amount of Shares set forth opposite each Underwriter's name in such Purchase Agreement, except to the extent that you determine that such reduction shall be other- wise allocated and so advise the Company. 3. Certain Covenants of the Company. The Company agrees: (a) As soon as possible after the execution and delivery of this Agreement to file, or mail for filing, the Prospectus with the Commission pursuant to its Rule 424 under the Act and, if and when required at any time after such execution and delivery, to file amendments to the applications the Company has previously filed with any state regulatory agencies having jurisdiction to govern the Company's issuance of its securities setting forth, among other things, the necessary informa- tion with respect to the price and the terms of the Shares and the terms of offering of the Shares; (b) To file no amendment or supplement to the Registration Statement or Prospectus (other than a required filing under the Exchange Act) subsequent to the execution of this Agreement and -4- prior to the time of purchase to which you object in writing; (c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Shares for sale under the laws of such jurisdictions as you may designate and in determining their eligibility for investment under the laws of such jurisdictions; provided that the Company shall not be required to qualify as a for- eign corporation or to file a general consent to service of process in any jurisdiction; (d) To the extent not previously furnished to you, to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including all exhibits filed therewith, other than exhibits which have previously been furnished to you), two signed copies of each consent and certificate of independent accountants and of each other person who by his profession gives authority to statements made by him and who is named in the Registration Statement as having prepared, certi- fied or reviewed any part thereof, and to furnish to you sufficient unsigned copies of the foregoing (other than exhibits, including consents filed as exhibits, to the Registration Statement) for dis- tribution of a copy to you and to each of the other Underwriters; (e) To deliver to the Underwriters without charge in New York City as soon as practicable after the execution and delivery of this Agreement and thereafter from time to time to furnish to the Underwriters, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (or as amended or supplemented, if the Company shall have made any amendment or sup- plement after the effective date of the Registra- tion Statement) as you or the respective Under- writers may reasonably request for the purposes contemplated by the Act; -5- (f) To advise you promptly (confirming such advice in writing) of any official request made by the Commission for amendments to the Registration Statement or Prospectus or for additional informa- tion with respect thereto, or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such order should be entered by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; (g) To apply the net proceeds from the sale of the Shares in the manner set forth in the Prospectus; (h) To furnish to you during a period of five years from the time of purchase (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) from time to time, copies of any reports or other communications which it shall file with the Commission or any governmental agency substituted therefor under the Exchange Act or sent to its stockholders, or holders of the Shares, and (iii) such other information as you may from time to time reasonably request regarding the financial condition and operations of the Company; (i) To furnish to any other Underwriter cop- ies of such of the financial statements, reports or other information referred to in the foregoing subparagraphs (h)(i) and (ii) as such Underwriter may, from time to time during the period you are entitled to receive them, request; (j) To advise the Underwriters of the hap- pening of any event known to the Company within the time during which a prospectus relating to the Shares is required to be delivered under the Act which, in the judgment of the Company, would require the making of any change in the Prospectus -6- or any amended or supplemented Prospectus or in the information incorporated by reference therein so that as thereafter delivered to purchasers such Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and on request to pre- pare and furnish to the Underwriters and to deal- ers and other persons designated by you such amendments or supplements (including appropriate filings under the Exchange Act) to the Prospectus as may be necessary to reflect any such change, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Underwriters to so notify the Company cancels the Company's obliga- tion under this Section 3(j)); (k) As soon as practicable, to make gener- ally available to its security holders an earnings statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement; (l) to pay the fees and expenses of counsel for the Underwriters, and to reimburse the Under- writers for their reasonable out-of-pocket expenses incurred in contemplation of the perfor- mance of this Agreement, in the event that the Shares are not delivered to and taken up and paid for by the Underwriters hereunder for any reason whatsoever except the failure or refusal of any Underwriter to take up and pay for Shares for some reason not permitted by the terms of this Agree- ment, the Underwriters agreeing to pay the fees and expenses of counsel for the Underwriters in any other event; (m) To pay all expenses, fees and taxes (other than transfer taxes and fees and disburse- ments of counsel for the Underwriters except as set forth under 3(1) above or (iv) below) in con- nection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospec- tus and the Prospectus, any documents incorporated by reference therein at or after the date thereof -7- and any amendments or supplements thereto, and the printing or reproduction and furnishing of copies of each thereof to the Underwriters and to deal- ers, (ii) the issue, sale and delivery of the Shares, (iii) the printing or reproduction of this Agreement and the opinions and letters referred to in Section 4(a) hereof, (iv) the qualification of the Shares for sale and determination of their eligibility for investment under state laws as aforesaid, including the reasonable legal fees and all filing fees and disbursements of counsel for the Underwriters and all other filing fees, and the printing or reproduction and furnishing of copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the Underwriters and to dealers, (v) the rating of the Shares by national rating agencies and (vi) the performance of the Company's other obligations hereunder; (n) To furnish to you as early as practi- cable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consoli- dated financial statements, if any, of the Company which have been read by the Company's independent public accountants as stated in their letter to be furnished pursuant to Section 4(a) of this Agree- ment; and (o) If a public offering of the Shares is to be made, not to offer or sell any of its Preferred Stock prior to thirty days after the time of pur- chase without your consent. 4. Conditions of Underwriters' Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) That, at the time of purchase, you shall receive the signed opinions of Hinkle, Cox, Eaton, Coffield & Hensley; Cahill Gordon & Reindel; Rainey, Ross, Rice and Binns; and Foulston & Siefkin, counsel for the Company, and counsel for the Underwriters, substantially in the forms here- tofore furnished to you, addressed to the Under- writers (with reproduced or conformed copies thereof for each of the other Underwriters); and -8- that, at the time of purchase, you shall receive the signed letters of the independent public accountants of the Company, substantially in the form heretofore furnished to you and in substance satisfactory to you addressed to the Underwriters (with reproduced or conformed copies thereof for each of the other Underwriters); (b) That, at or before 5:30 P.M. on the date hereof, or at such later time and day as you may have from time to time consented to in writing or by telephone, confirmed in writing, the orders of the New Mexico Public Utility Commission, neces- sary to permit the issue, sale and delivery of the Shares shall have been issued; at the time of pur- chase such orders shall be in full force and effect; and prior to such time of purchase no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act by the Commission and at such time of purchase no proceedings therefor shall be pend- ing or threatened; (c) That, at the time the Registration Statement became effective, the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that at the time of purchase the Prospectus shall not con- tain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, other than any statement contained in, or any matter omitted from, the Registration Statement or the Prospectus in reliance upon, and in conformity with, informa- tion furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration Statement or Prospectus; (d) That, subsequent to the respective dates as of which information is given in the Registra- tion Statement and in the Prospectus, at the time the Prospectus is first filed, or mailed for -9- filing, pursuant to Rule 424 under the Act, and prior to the time of purchase, in your opinion no material adverse change, or any development involving a prospective material adverse change, in the condition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time); (e) That the Company shall have performed all of its obligations under this Agreement which are to be performed by the terms hereof at or before the time of purchase; and (f) That the Company shall, at the time of purchase, deliver to you (with reproduced or con- formed copies thereof for each of the other Under- writers) a signed certificate of two of its execu- tive officers stating that, subsequent to the respective dates as of which information is given in the Registration Statement and in the Prospec- tus, at the time the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, and prior to the time of purchase, no mate- rial adverse change, or any development involving a prospective material adverse change, in the con- dition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time) and also covering the matters set forth in (c) and (e) of this Section 4. (g) That the Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Shares arranged by the Underwriters have been approved by the Company. 5. Termination of Agreement. The obligations of the several Underwriters hereunder shall be subject to termina- tion in your absolute discretion, if, at any time prior to the time of purchase, trading in securities on the New York Stock Exchange shall have been suspended (other than a temporary sus- pension to provide for an orderly market) or minimum prices shall have been established on the New York Stock Exchange, or if a banking moratorium shall have been declared either by the United States or New York State authorities, or if after the -10- execution of this Agreement the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on the financial markets of the United States as, in your judgment, to make it impracti- cable to market the Shares. If you elect to terminate this Agreement as provided in this Section 5, the Company and each other Underwriter shall be notified promptly in writing or by telephone, confirmed in writing. If the sale to the Underwriters of the Underwriters' Shares as herein contemplated is not carried out by the Under- writers for any reason permitted hereunder or if such sale is not carried out because the Company shall be unable to comply with any of the terms thereof, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 3(1), 3(m), 7(b) and 9 hereof), and the Underwriters shall be under no obligation or liability to the Company (except to the extent provided in Sections 8(b) and 9 hereof) or to one another under this Agreement. 6. Increase in Underwriters' Commitments. If any Underwriter shall default in its obligation to take up and pay for the Shares to be purchased by it hereunder and if the num- ber of Shares which all Underwriters so defaulting shall have so failed to take up and pay for does not exceed 10% of the total number of Shares, the non-defaulting Underwriters shall take up and pay for (in addition to the number of Shares they are obligated to purchase pursuant to this Agreement) the num- ber of Shares agreed to be purchased by all such defaulting Underwriters, as herein provided. Such Shares shall be taken up and paid for by such non-defaulting Underwriter or Under- writers in such number as you may designate with the consent of each Underwriter so designated or, in the event no such desig- nation is made, such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion to the number of Shares set opposite the names of all such non- defaulting Underwriters in Schedule A to the Purchase Agreement. Without relieving any defaulting Underwriter of its obligations hereunder, the Company agrees with the non-default- ing Underwriters that it will not sell any Shares hereunder unless all of the Shares are purchased by the Underwriters (or -11- by substituted Underwriters selected by you with the approval of the Company or selected by the Company with your approval). If a new underwriter or underwriters are substituted by the Underwriters or by the Company for a defaulting Under- writer or Underwriters in accordance with the foregoing provi- sion, the Company or you will have the right to postpone the time of purchase for a period of not exceeding five business days in order that necessary changes in the Registration State- ment and Prospectus and other documents may be effected. The term Underwriter as used in this Agreement will refer to and include any underwriter substituted under this Section 6 with like effect as if such substituted underwriter had originally been named in Schedule A to the Purchase Agreement. 7. Warranties and Representations of and Indemnity by the Company. (a) The Company warrants and represents that, when the Registration Statement became effective, the Registra- tion Statement complied in all material respects, and, when the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, the Prospectus will comply in all mate- rial respects with the provisions of the Act, and that neither will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or neces- sary to make the statements therein not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in, or any matter omit- ted from, the Registration Statement or the Prospectus in reli- ance upon and in conformity with information furnished in writ- ing by or on behalf of any Underwriter through you to the Com- pany expressly for use with reference to the Underwriter in the Registration Statement or Prospectus. The Company also war- rants and represents that the documents incorporated by refer- ence in the Prospectus comply in all material respects with the requirements of the Exchange Act and any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein, or neces- sary to make the statements therein, in the light of the cir- cumstances under which they are made, not misleading. -12- (b) The Company agrees to indemnify and hold harm- less each Underwriter, and any person who controls any Under- writer within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact in the Registration Statement, any prospectus contained in the Regis- tration Statement at the time it became effective or the Pro- spectus, or any related preliminary prospectus, or arises out of or is based upon any alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading. The foregoing shall not cover any such loss, expense, liability or claim, however, which arises out of or is based upon any alleged untrue statement of a material fact contained in, and in con- formity with information furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to the Underwriter in, any such documents or arises out of or is based upon any alleged omission to state a material fact in connection with such information required to be stated in any such documents or necessary to make such information not misleading. If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to the foregoing paragraph, such Underwriter shall promptly notify the Company in writing or by telephone, confirmed in writing, of the institution of such action and the Company shall assume the defense of such action, including the employment of counsel and payment of expenses. Such Underwriter or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless the employment of such counsel shall have been authorized in writing by the Com- pany in connection with the defense of such action or the Com- pany shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses of one counsel for all indem- nified parties selected by you shall be borne by the Company. Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such -13- claim or action effected without its written consent. The Com- pany's indemnity agreement contained in this Section 7(b) and its warranties and representations contained in this Agreement shall remain in full force and effect regardless of any inves- tigation made by or on behalf of any Underwriter or controlling person, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. The Company agrees promptly to notify the Underwriters of the commencement of any litigation or proceedings against the Company or any of its officers or directors in connection with the issue and sale of the Shares or with such Registration Statement or Prospectus. 8. Warranties and Representations of the Indemnity by Underwriters. (a) Each Underwriter warrants and represents that the information furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration State- ment at the time it became effective or the Prospectus, or any related preliminary prospectus does not contain an untrue statement of a material fact and does not omit to state a mate- rial fact in connection with such information required to be stated in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus or necessary to make such information not misleading. Each Underwriter, in addition to other information furnished by such Underwriter or on its behalf through you to the Company in writing expressly for use with reference to such Underwriter in the Registration Statement and Prospectus, hereby furnishes to the Company in writing expressly for use with reference to such Underwriter the statements with respect to the terms of offer- ing of the Shares by the Underwriters set forth on the cover page of the Prospectus Supplement and under "underwriting" therein. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and its officers from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact contained in, and in conformity with informa- tion furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in, the Registration Statement, any prospectus contained in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus, or arises out of or is based upon any alleged omission to state a material fact in connection with such information -14- required to be stated in such documents or necessary to make such information not misleading. If any action is brought against the Company or any such person in respect of which indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Com- pany or such person shall promptly notify such Underwriter in writing or by telephone, confirmed in writing, of the institu- tion of such action and such Underwriter shall assume the defense of such action, including the employment of counsel and payment of expenses. The Company or such person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by such Under- writer in connection with the defense of such action or such Underwriter shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to such Underwriter (in which case such Underwriter shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses for all indemnified parties of one counsel selected by the Company shall be borne by such Underwriter. Anything in this paragraph to the con- trary notwithstanding, no Underwriter shall be liable for any settlement of any such claim or action effected without the written consent of such Underwriter. The indemnity agreement on the part of each Underwriter contained in this Section 8(b) shall remain in full force and effect regardless of any inves- tigation made by or on behalf of the Company or such person, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. Each Underwriter agrees promptly to notify the Company of the commencement of any liti- gation or proceedings against such Underwriter in connection with the issue and sale of the Shares or with such Registration Statement or Prospectus. 9. Contribution. If the indemnification provided for in Section 7(b) or 8(b) above is unavailable in respect of any losses, expenses, liabilities or claims referred to therein, then the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses except to the extent that contribution is not per- mitted under the Act or the Exchange Act. In determining the amount of contribution to which the respective parties are -15- entitled, there shall be considered the relative benefits received by each party from the offering of the Shares (taking into account the portion of the proceeds of the offering real- ized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Underwriters and such controlling persons agree that it would not be equitable if the amount of such contribution were deter- mined by pro rata or per capita allocation (even if the Under- writers and such controlling persons were treated as one entity for such purpose). The contribution agreement contained in this Section 9 shall remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its officers or directors or any control- ling person and shall survive any termination of this Agreement or the issuance and delivery of the Shares. 10. Notices. All statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent by registered mail to the address furnished in writing for the purpose of such statements, requests, notices and agreements hereunder, and, if to the Company shall be suffi- cient in all respects if delivered or sent by registered mail to the Company at Tyler at Sixth, Amarillo, Texas 79101, Attention: Chairman of the Board. 11. Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this agreement. 12. Parties in Interest. The Agreement herein set forth has been and is made solely for the benefit of the Under- writers and the Company, and the controlling persons, directors and officers referred to in Sections 7, 8 and 9 hereof, and their respective successors, assigns, executors and administra- tors, and no other person shall acquire or have any right under or by virtue of this Agreement. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation (including, without limitation, any pur- chaser of the Shares from an Underwriter or any subsequent -16- holder thereof) any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. The term "successor" as used in this Agreement shall not include any purchaser, as such purchaser, of any Shares from any Underwriter or any subsequent holder thereof. 13. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall consti- tute one and the same instrument. Schedule I DELAYED DELIVERY CONTRACT Dated: , 199 SOUTHWESTERN PUBLIC SERVICE COMPANY Tyler at Sixth Amarillo, Texas 79101 Attention: Dear Sirs: The undersigned hereby agrees to purchase from South- western Public Service Company (the "Company"), and the Company agrees to sell to the undersigned, ___________________ shares of the Company's [state title of issue] (the "Shares") offered by the Company's Prospectus dated , 199 and a Prospectus Supplement dated , 199 , receipt of cop- ies of which is hereby acknowledged, at a purchase price of $ per share plus accrued dividends and on the further terms and conditions set forth in this contract. The undersigned agrees to purchase such Shares in the amounts and on the delivery dates (the "Delivery Dates") set forth below: Delivery Number of Plus Accrued Date Shares Dividends From: -------- --------- --------------- ________________ _______________ ________________ ________________ _______________ ________________ ________________ _______________ ________________ Payment for the Shares which the undersigned has agreed to purchase on each Delivery Date shall be made to the Company or its order by certified or bank cashier's check in -2- _______________________________* funds at the Corporate Trust Office of (or at such other place as the under- signed and the Company shall agree) at 11:00 A.M., New York City Time, on such Delivery Date upon issuance and delivery to the undersigned of the Shares to be purchased by the under- signed on such Delivery Date and, unless otherwise provided herein, registered in such names as the undersigned may desig- nate by written or telegraphic communications addressed to the Company not less than five full business days prior to such Delivery Date. The obligation of the Company to sell and deliver, and of the undersigned to take delivery of and make payment for, Shares on each Delivery Date shall be subject to the con- ditions that (1) the purchase of Shares to be made by the undersigned shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is subject, (2) the sale of the Shares by the Company pursuant to this contract shall not at the time of delivery be prohibited under the laws of any jurisdiction to which the Company is sub- ject and (3) the Company shall have sold, and delivery shall have taken place, to the Underwriters of such number of the Shares as is to be sold and delivered to them. In the event that Shares are not sold to the undersigned because one of the foregoing conditions is not met, the Company shall not be lia- ble to the undersigned for damages arising out of the transac- tions covered by this contract. Promptly after completion of the sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by copies of the opinions of counsel for the Company delivered to the Underwriters. Failure to take delivery of and make payment for Shares by any purchaser under any other Delayed Delivery Con- tract shall not relieve the undersigned of its obligations under this contract. The undersigned represents and warrants that (a) as of the date of this contract, the undersigned is not prohibited under the laws of the jurisdictions to which the undersigned is subject from purchasing the Shares hereby agreed to be pur- chased and (b) the undersigned does not contemplate selling the ___________________ * Insert same day or New York Clearing House funds. -3- Shares which it has agreed to purchase hereunder prior to the Delivery Date therefor. This contract will inure to the benefit of and be binding upon the parties hereto and their respective succes- sors, but will not be assignable by either party hereto without the written consent of the other. This contract shall be gov- erned by and construed in accordance with the laws of the State of New York. This contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. It is understood that the acceptance of any Delayed Delivery Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If the contract is acceptable to the Com- pany, it is requested that the Company sign the form of accep- tance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the under- signed when such counterpart is so signed. Yours very truly, ____________________________________ By____________________________________ ____________________________________ ____________________________________ Address Accepted, as of the date first above written Southwestern Public Service Company By_________________________________ -4- PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING The name and telephone and department of the repre- sentative of the Purchaser with whom details of delivery on the Delivery Date may be discussed are as follows: (Please print.) Telephone No. Name (Including Area Code) Department SOUTHWESTERN PUBLIC SERVICE COMPANY PURCHASE AGREEMENT PREFERRED STOCK Southwestern Public Service Company Tyler at Sixth Amarillo, Texas 79101 Dear Sirs: Referring to the Preferred Stock of Southwestern Pub- lic Service Company (the "Company") covered by the registration statement on Form S-3 (No. 33-______), such registration state- ment including (i) the prospectus included therein, dated , 199_ in the form first filed under Rule 424 and any additional prospectus supplements relating to the Preferred Stock filed under Rule 424 (such prospectus as so supplemented, including each document incorporated by reference therein is hereinafter called the "Prospectus") and (ii) all documents filed as part thereof or incorporated by reference therein, is hereinafter called the "Registration Statement", on the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Underwriters") agree to purchase, severally, and the Company agrees to sell to the Underwriters, severally, the respective number of shares of Preferred Stock having the terms described below (the "Shares") set forth opposite the name of each Underwriter on Schedule A hereto. The price at which the Shares shall be purchased from the Company by the Underwriters shall be $____ per share plus dividends, if any, accrued from _________________, 199_. The initial public offering price shall be $____ per share plus dividends, if any, accrued from ___________________, 199_. The Shares will be offered by the Underwriters as set forth in the Prospectus relating to such Shares. The Shares will have the following terms: -2- Title of Shares: ___% Preferred Stock Dividend rate: ____% per annum Date from which [cumula- tive] dividend will accrue: _______________, 199_ Liquidation Preference per share: ______________________ Redemption Provisions: _______________________ _______________________ _______________________ Sinking Fund Provisions: _______________________ _______________________ _______________________ Other: _______________________ _______________________ _______________________ Payment for the Shares shall be made in the fol- lowing funds: _______________________ The "time of purchase" shall be: _______________________ The place at which the Shares may be checked and packaged shall be: _______________________ The place(s) at which the Shares shall be delivered and sold shall be: _______________________ Delayed Delivery Contracts: _______________________ -3- Notices to Underwriters shall be sent to the follow- ing address(es) or telecopier number(s): If we are acting as Representative(s) for the several Underwriters named in Schedule A hereto, we represent that we are authorized to act for such several Underwriters in connec- tion with the transactions contemplated in this Agreement, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Underwriters. All of the provisions contained in the document enti- tled "Southwestern Public Service Company Standard Purchase Provisions - Preferred Stock", a copy of which has been previ- ously furnished to us, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agree- ment to the same extent as if such provisions had been set forth in full herein. If the foregoing is in accordance with your under- standing of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, [Firm Name] By _____________________________ Title: ______________________ [Firm Name] By _____________________________ Title: ______________________ Acting on behalf of and as Representative(s) of the several Underwriters named in Schedule A hereto.* ___________________ * To be deleted if the Purchase Agreement is not executed by one or more Underwriters acting as Representative(s) of the Underwriters for purposes of this Agreement. -4- The foregoing Purchase Agreement is hereby confirmed as of the date first above written SOUTHWESTERN PUBLIC SERVICE COMPANY By ____________________________ Title: _____________________ _______________________________ SCHEDULE A Number of Name of Underwriters Shares Total __________ __________ EX-1.B 3 FORM OF STANDARD PURCHASE PROVISIONS -- NEW BONDS Exhibit 1(b) SOUTHWESTERN PUBLIC SERVICE COMPANY FIRST MORTGAGE BONDS STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT SOUTHWESTERN PUBLIC SERVICE COMPANY STANDARD PURCHASE PROVISIONS - FIRST MORTGAGE BONDS ------------------------------------ From time to time, Southwestern Public Service Com- pany, a corporation organized and existing under the laws of the State of New Mexico (the "Company"), may enter into pur- chase agreements that provide for the sale of designated secu- rities to the purchaser or purchasers named therein. The stan- dard provisions set forth herein may be incorporated by refer- ence in any such purchase agreement (the "Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." The term "Bonds" shall mean the First Mortgage Bonds of the Company to be sold by the Company pursuant to the applicable Purchase Agreement. Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. The Company has filed, in accordance with the provi- sions of the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder (collectively called the "Act"), with the Securities and Exchange Commission (the "Commission"), a registration statement on Form S-3 (including a prospectus), relating to shares of Preferred Stock and Unsecured Debt of the Company and the Bonds, which pursuant to Item 12 of Form S-3 incorporates by reference documents which the Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively called the "Exchange Act"). Such registration statement has been declared effective by the Commission. Promptly upon the execution of this Agreement, the Company will prepare a prospectus supplement relating to the Bonds (the "Prospectus Supplement"). The Company has furnished to you, for use by the Underwriters (as defined herein) and dealers, copies of one or more preliminary prospectuses and the documents so incorporated therein (each thereof, including the documents so incorporated therein, is herein called the "Preliminary Prospectus"). The terms Registration Statement and Prospectus shall have the meanings ascribed to them in the Purchase Agreement. 1. Introductory. The Company proposes to issue and sell from time to time Bonds registered under the Registration Statement. The Bonds will be issued pursuant to the Indenture of Mortgage and Deed of Trust, dated August 1, 1946, to Chemi- cal Bank as Trustee (the "Bonds Trustee"), as supplemented and -2- amended, including a supplemental indenture pertaining to the particular series of Bonds involved in the offering (the "Mort- gage"), and will have varying designations, interest rates and times of payment of any interest, maturities, redemption provi- sions and other terms, with all such terms for any particular series of the Bonds being determined at the time of the sale and set forth in the Purchase Agreement and the Prospectus Sup- plement relating to such series of Bonds. The Bonds involved in any such offering are hereinafter referred to as the "Pur- chased Bonds," and the firm or firms, as the case may be, which agree to purchase the same are hereinafter referred to as the "Underwriters" of the Purchased Bonds. The terms "you" and "your" refer to those Underwriters who sign the Purchase Agree- ment either on behalf of themselves only or on behalf of them- selves and as representatives of the several Underwriters named in Schedule A thereto, as the case may be. Purchased Bonds to be purchased by Underwriters are herein referred to as "Under- writers' Bonds," and any Purchased Bonds to be purchased pursu- ant to Delayed Delivery Contracts (as defined below) as herein- after provided are herein referred to as "Contract Bonds." 2. Delivery and Payment. The Company will deliver the Underwriters' Bonds to you for the accounts of the Under- writers at the place specified in the Purchase Agreement, against payment of the purchase price by certified or bank cashier's check in same day or New York Clearing House funds (as agreed to by the parties and specified in the Purchase Agreement) drawn to the order of the Company, at the time set forth in this Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "time of purchase." Unless otherwise provided for in the Purchase Agreement, the Underwriters' Bonds so to be delivered will be in definitive fully registered form registered in such autho- rized denominations and in such names as you request in writing not later than 10:00 A.M.,* on the third business day** prior to the time of purchase, or, if no such request is received, in the names of the respective Underwriters in the amounts agreed to be purchased by them pursuant to this Agreement. For the purpose of expediting the checking of the Underwriters' Bonds, the Company agrees to make the Underwriters' Bonds available to _________________________ * Times mentioned herein are New York City Time. ** As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. -3- you (at the place specified in the Purchase Agreement) in definitive form not later than 10:00 A.M. on the first business day preceding the time of purchase. If any Purchase Agreement provides for sales of Pur- chased Bonds pursuant to delayed delivery contracts, the Com- pany authorizes the Underwriters to solicit offers to purchase Contract Bonds pursuant to delayed delivery contracts substan- tially in the form of Schedule I attached hereto (the "Delayed Delivery Contracts") with such changes therein as the Company may approve. Delayed Delivery Contracts are to be with insti- tutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies, and educational and charitable institutions. At the time of pur- chase the Company will pay you as compensation, for the accounts of the Underwriters, the compensation set forth in such Purchase Agreement in respect of the principal amount of Contract Bonds. The Underwriters will not have any responsi- bility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and delivers Delayed Delivery Contracts, the Contract Bonds shall be deducted from the Purchased Bonds to be purchased by the sev- eral Underwriters and the aggregate principal amount of Pur- chased Bonds to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Pur- chased Bonds set forth opposite each Underwriter's name in such Purchase Agreement, except to the extent that you determine that such reduction shall be otherwise allocated and so advise the Company. 3. Certain Covenants of the Company. The Company agrees: (a) As soon as possible after the execution and delivery of this Agreement to file, or mail for filing, the Prospectus with the Commission pursuant to its Rule 424 under the Act and, if and when required at any time after such execution and delivery, to file amendments to the applications the Company has previously filed with any state regulatory agencies having jurisdiction to govern the Company's issuance of its securities setting forth, among other things, the necessary informa- tion with respect to the price and terms of the Purchased Bonds and the terms of offering of the Purchased Bonds; -4- (b) To file no amendment or supplement to the Registration Statement or Prospectus subse- quent to the execution of this Agreement to which you object in writing; (c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Purchased Bonds for sale under the laws of such jurisdictions as you may designate and in determining their eligibility for invest- ment under the laws of such jurisdictions; pro- vided that the Company shall not be required to qualify as a foreign corporation or to file a gen- eral consent to service of process in any jurisdiction; (d) To the extent not previously furnished to you, to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including all exhibits filed therewith, other than exhibits which have previously been furnished to you), two signed copies of each consent and certificate of independent accountants and of each other person who by his profession gives authority to statements made by him and who is named in the Registration Statement as having prepared, certi- fied or reviewed any part thereof, and to furnish to you sufficient unsigned copies of the foregoing (other than exhibits, including consents filed as exhibits, to the Registration Statement) for dis- tribution of a copy to you and to each of the other Underwriters; (e) To deliver to the Underwriters without charge in New York City as soon as practicable after the execution and delivery of this Agreement and thereafter from time to time to furnish to the Underwriters, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (or as amended or supplemented, if the Company shall have made any amendment or sup- plement after the effective date of the Registra- tion Statement) as you or the respective -5- Underwriters may reasonably request for the pur- poses contemplated by the Act; (f) To advise you promptly (confirming such advice in writing) of any official request made by the Commission for amendments to the Registration Statement or Prospectus or for additional informa- tion with respect thereto, or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such order should be entered by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible, or of the suspension of qualification of the Purchased Bonds for offer- ing or sale in any jurisdiction or of the initia- tion or threatening of any proceeding for any such purpose; (g) To apply the net proceeds from the sale of the Purchased Bonds in the manner set forth in the Prospectus; (h) To furnish to you during a period of five years from the time of purchase (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; (ii) from time to time, copies of any reports or other communications which it shall file with the Commission or any governmental agency substituted therefor under the Exchange Act or sent to its stockholders, or holders of the Purchased Bonds, and (iii) such other information as you may from time to time reasonably request regarding the financial condition and operations of the Company; (i) To furnish to any other Underwriter cop- ies of such of the financial statements, reports or other information referred to in the foregoing subparagraphs (h)(i) and (ii) as such Underwriter may, from time to time during the period you are entitled to receive them, request; (j) To advise the Underwriters of the hap- pening of any event known to the Company within the time during which a prospectus relating to the -6- Purchased Bonds is required to be delivered under the Act which, in the judgment of the Company, would require the making of any change in the Pro- spectus or any amended or supplemented Prospectus or in the information incorporated by reference therein so that as thereafter delivered to pur- chasers such Prospectus will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and on request to pre- pare and furnish to the Underwriters and to deal- ers and other persons designated by you such amendments or supplements (including appropriate filings under the Exchange Act) to the Prospectus as may be necessary to reflect any such change, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Underwriters to so notify the Company cancels the Company's obliga- tion under this Section 3(j)); (k) As soon as practicable, to make gener- ally available to its security holders an earnings statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement; (l) To pay the fees and expenses of counsel for the Underwriters, and to reimburse the Under- writers for their reasonable out-of-pocket expenses incurred in contemplation of the perfor- mance of this Agreement, in the event that the Underwriters' Bonds are not delivered to and taken up and paid for by the Underwriters hereunder for any reason whatsoever except the failure or refusal of any Underwriter to take up and pay for Underwriters' Bonds for some reason not permitted by the terms of this Agreement, the Underwriters agreeing to pay the fees and expenses of counsel for the Underwriters in any other event; (m) To pay all expenses, fees and taxes (other than transfer taxes and fees and disburse- ments of counsel for the Underwriters except as set forth under 3(l) above or (iv) below) in -7- connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus and the Prospectus, any documents incorporated by reference therein at or after the date thereof and any amendments or supplements thereto, and the printing or reproduction and fur- nishing of copies of each thereof to the Under- writers and to dealers, (ii) the issue, sale and delivery of the Purchased Bonds, (iii) the print- ing or reproduction of this Agreement and the opinions and letters referred to in Section 4(a) hereof, (iv) the qualification of the Purchased Bonds for sale and determination of their eligi- bility for investment under state laws as afore- said, including the legal fees and all filing fees and disbursements of counsel for the Underwriters and all other filing fees, and the printing or reproduction and furnishing of copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the Underwriters and to dealers, (v) the rating of the Purchased Bonds by national rating agencies and (vi) the performance of the Company's other obligations hereunder; (n) To furnish to you as early as practi- cable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consoli- dated financial statements, if any, of the Company which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 4(a) of this Agreement; (o) To cause the Mortgage to be duly filed for record, appropriate notices of such filing to be recorded, and an appropriate financing state- ment to be filed, wherever necessary or appropri- ate in New Mexico, Oklahoma and Texas prior to the time of purchase of any Bonds; and (p) If a public offering of the Purchased Bonds is to be made, not to offer or sell any of its other debt securities which are substantially similar to the Purchased Bonds prior to ten days after the time of purchase without your consent. -8- 4. Conditions of Underwriters' Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) That, at the time of purchase, you shall receive the signed opinions of Hinkle, Cox, Eaton, Coffield & Hensley; Cahill Gordon & Reindel; Rainey, Ross, Rice & Binns; and Foulston & Siefkin, counsel for the Company, and counsel for the Underwriters, substantially in the forms here- tofore furnished to you, addressed to the Under- writers (with reproduced or conformed copies thereof for each of the other Underwriters); and that, at the time of purchase, you shall receive the signed letters of the independent public accountants of the Company, substantially in the form heretofore furnished to you and in substance satisfactory to you addressed to the Underwriters (with reproduced or conformed copies thereof for each of the other Underwriters); (b) That, at or before 5:30 P.M. on the date hereof, or at such later time and day as you may have from time to time consented to in writing or by telephone, confirmed in writing, the orders of the New Mexico Public Utility Commission and the Corporation Commission of Oklahoma, necessary to permit the issue, sale and delivery of the Pur- chased Bonds shall have been issued; at the time of purchase such orders shall be in full force and effect; and prior to such time of purchase no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act by the Commission and at such time of purchase no proceedings therefor shall be pend- ing or threatened; (c) That, at the time the Registration Statement became effective, the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that at the time of purchase the Prospectus shall not con- tain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements -9- therein, in the light of the circumstances under which they were made, not misleading, other than any statement contained in, or any matter omitted from, the Registration Statement or the Prospectus in reliance upon, and in conformity with, informa- tion furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration Statement or Prospectus; (d) That, subsequent to the respective dates as of which information is given in the Registra- tion Statement and in the Prospectus, at the time the Prospectus is first filed, or mailed for fil- ing, pursuant to Rule 424 under the Act, and prior to the time of purchase, in your opinion no mate- rial adverse change, or any development involving a prospective material adverse change, in the con- dition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time); (e) That the Company shall have performed all of its obligations under this Agreement which are to be performed by the terms hereof at or before the time of purchase; (f) That the Company shall, at the time of purchase, deliver to you (with reproduced or con- formed copies thereof for each of the other Under- writers) a signed certificate of two of its execu- tive officers stating that, subsequent to the respective dates as of which information is given in the Registration Statement and in the Prospec- tus, at the time the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, and prior to the time of purchase, no mate- rial adverse change, or any development involving a prospective material adverse change, in the con- dition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time) and also covering the matters set forth in (c) and (e) of this Sec- tion 4; and -10- (g) That the Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Bonds arranged by the Underwriters have been approved by the Company. 5. Termination of Agreement. The obligations of the several Underwriters hereunder shall be subject to termina- tion in your absolute discretion, if, at any time prior to the time of purchase, trading in securities on the New York Stock Exchange shall have been suspended (other than a temporary sus- pension to provide for an orderly market) or minimum prices shall have been established on the New York Stock Exchange, or if a banking moratorium shall have been declared either by the United States or New York State authorities, or if after the execution of this Agreement the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on the financial markets of the United States as, in your judgment, to make it impracti- cable to market the Purchased Bonds. If you elect to terminate this Agreement as provided in this Section 5, the Company and each other Underwriter shall be notified promptly in writing or by telephone, confirmed in writing. If the sale to the Underwriters of the Underwriters' Bonds, as herein contemplated, is not carried out by the Under- writers for any reason permitted hereunder or if such sale is not carried out because the Company shall be unable to comply with any of the terms thereof, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 3(l), 3(m), 7(b) and 9 hereof), and the Underwriters shall be under no obligation or liability to the Company (except to the extent provided in Sections 8(b) and 9 hereof) or to one another under this Agreement. 6. Increase in Underwriters' Commitments: If any Underwriter shall default in its obligation to take up and pay for the Purchased Bonds to be purchased by it hereunder and if the principal amount of the Purchased Bonds which all Under- writers so defaulting shall have so failed to take up and pay for does not exceed 10% of the total principal amount of the Purchased Bonds, the non-defaulting Underwriters shall take up and pay for (in addition to the principal amount of the Pur- chased Bonds they are obligated to purchase pursuant to this -11- Agreement) the principal amount of the Purchased Bonds agreed to be purchased by all such defaulting Underwriters, as herein provided. Such Purchased Bonds shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Purchased Bonds shall be taken up and paid for by all non-defaulting Underwriters pro rata in proportion to the principal amount of the Purchased Bonds set opposite the names of all such non-defaulting Underwriters in Schedule A to the Purchase Agreement. Without relieving any defaulting Underwriter of its obligations hereunder, the Company agrees with the non-default- ing Underwriters that it will not sell any Purchased Bonds hereunder unless all of the Underwriters' Bonds are purchased by the Underwriters (or by substituted Underwriters selected by you with the approval of the Company or selected by the Company with your approval). If a new underwriter or underwriters are substituted by the Underwriters or by the Company for a defaulting Under- writer or Underwriters in accordance with the foregoing provi- sion, the Company or you will have the right to postpone the time of purchase for a period of not exceeding five business days in order that necessary changes in the Registration State- ment and Prospectus and other documents may be effected. The term Underwriter as used in this Agreement will refer to and include any underwriter substituted under this Section 6 with like effect as if such substituted underwriter had originally been named in Schedule A to the Purchase Agreement. 7. Warranties and Representations of and Indemnity by the Company. (a) The Company warrants and represents that, when the Registration Statement became effective, the Registra- tion Statement complied in all material respects, and, when the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, the Prospectus will comply in all mate- rial respects with the provisions of the Act, and that neither will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or neces- sary to make the statements therein not misleading; provided, however, that the Company makes no warranty or representation with respect to any statement contained in, or any matter omit- ted from, the Registration Statement or the Prospectus in -12- reliance upon and in conformity with information furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use with reference to the Underwriter in the Registration Statement or Prospectus. The Company also warrants and represents that the documents incorporated by reference in the Prospectus comply in all material respects with the requirements of the Exchange Act and any additional documents deemed to be incorporated by reference in the Pro- spectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (b) The Company agrees to indemnify and hold harm- less each Underwriter, and any person who controls any Under- writer within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact in the Registration Statement, any prospectus contained in the Registration State- ment at the time it became effective or the Prospectus, or any related preliminary prospectus, or arises out of or is based upon any alleged omission to state therein a material fact required to be stated therein or necessary to make the state- ments made therein not misleading. The foregoing shall not cover any such loss, expense, liability or claim, however, which arises out of or is based upon any alleged untrue state- ment of a material fact contained in, and in conformity with information furnished in writing by or on behalf of such Under- writer through you to the Company expressly for use with refer- ence to the Underwriter in, any such documents or arises out of or is based upon any alleged omission to state a material fact in connection with such information required to be stated in any such documents or necessary to make such information not misleading. If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to the foregoing paragraph, such Underwriter shall promptly notify the Company in writing or by telephone, confirmed in writing, of the institution of such action and the Company shall assume the defense of such action, including the employment of counsel and payment of expenses. Such Underwriter or controlling person shall have the right to -13- employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless the employment of such counsel shall have been authorized in writing by the Com- pany in connection with the defense of such action or the Com- pany shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses of one counsel for all indem- nified parties selected by you shall be borne by the Company. Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action effected without its written consent. The Com- pany's indemnity agreement contained in this Section 7(b) and its warranties and representations contained in this Agreement shall remain in full force and effect regardless of any inves- tigation made by or on behalf of any Underwriter or controlling person, and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Bonds. The Company agrees promptly to notify the Underwriters of the commencement of any litigation or proceedings against the Company or any of its officers or directors in connection with the issue and sale of the Purchased Bonds or with such Registration Statement or Prospectus. 8. Warranties and Representations of and Indemnity by Underwriters. (a) Each Underwriter warrants and represents that the information furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration State- ment at the time it became effective or the Prospectus, or any related preliminary prospectus does not contain an untrue statement of a material fact and does not omit to state a mate- rial fact in connection with such information required to be stated in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus or necessary to make such information not misleading. Each Underwriter, in addition to other information furnished by such Underwriter or on its behalf through you to the Company in writing expressly for use with reference to such Underwriter in the Registration Statement and Prospectus, hereby furnishes to the Company in writing expressly for use with reference to such Underwriter the statements with respect to the terms of -14- offering of the Purchased Bonds by the Underwriters set forth on the cover page of the Prospectus Supplement and under "Underwriting" therein. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and its officers from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact contained in, and in conformity with informa- tion furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in, the Registration Statement, any prospectus contained in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus, or arises out of or is based upon any alleged omission to state a material fact in connection with such information required to be stated in such documents or necessary to make such information not misleading. If any action is brought against the Company or any such person in respect of which indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Com- pany or such person shall promptly notify such Underwriter in writing or by telephone, confirmed in writing, of the institu- tion of such action and such Underwriter shall assume the defense of such action, including the employment of counsel and payment of expenses. The Company or such person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by such Under- writer in connection with the defense of such action or such Underwriter shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to such Underwriter (in which case such Underwriter shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses for all indemnified parties of one counsel selected by the Company shall be borne by such Underwriter. Anything in this paragraph to the con- trary notwithstanding, no Underwriter shall be liable for any settlement of any such claim or action effected without the written consent of such Underwriter. The indemnity agreement on the part of each Underwriter contained in this Section 8(b) shall remain in full force and effect regardless of any -15- investigation made by or on behalf of the Company or such per- son, and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Bonds. Each Underwriter agrees promptly to notify the Company of the commencement of any litigation or proceedings against such Underwriter in con- nection with the issue and sale of the Purchased Bonds or with such Registration Statement or Prospectus. 9. Contribution. If the indemnification provided for in Sections 7(b) or 8(b) above is unavailable in respect of any losses, expenses, liabilities or claims referred to therein, then the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses except to the extent that contribution is not per- mitted under the Act or the Exchange Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Bonds (taking into account the portion of the proceeds of the offer- ing realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable con- siderations appropriate under the circumstances. The Company and the Underwriters and such controlling persons agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Underwriters and such controlling persons were treated as one entity for such purpose). The contribution agreement contained in this Section 9 shall remain in full force and effect regard- less of any investigation made by or on behalf of any Under- writer or the Company or any of its officers or directors or any controlling person and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Bonds. 10. Notices. All statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent by registered mail to the address furnished in writing for the purpose of such statements, requests, notices and agreements hereunder, and, if to the Company shall be suffi- cient in all respects if delivered or sent by registered mail to the Company at Tyler at Sixth, Amarillo, Texas 79101, Atten- tion: Chairman of the Board. -16- 11. Construction. This Agreement shall be governed by, and construed in accorance with, the laws of the State of New York. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this agreement. 12. Parties in Interest. The Agreement herein set forth has been and is made solely for the benefit of the Under- writers and the Company, and the controlling persons, directors and officers referred to in Sections 7, 8 and 9 hereof, and their respective successors, assigns, executors and administra- tors, and no other person shall acquire or have any right under or by virtue of this Agreement. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation (including, without limitation, any pur- chaser of the Purchased Bonds from an Underwriter or any subse- quent holder thereof or any purchaser of any Contract Bonds or any subsequent holder thereof) any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. The term "successor" as used in this Agreement shall not include any purchaser, as such purchaser, of any Purchased Bonds from any Underwriter or any subsequent holder thereof or any purchaser, as such purchaser, of any Contract Bonds or any subsequent holder thereof. 13. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall consti- tute one and the same instrument. Schedule I DELAYED DELIVERY CONTRACT Dated: , 199 SOUTHWESTERN PUBLIC SERVICE COMPANY Tyler at Sixth Amarillo, Texas 79101 Attention: Dear Sirs: The undersigned hereby agrees to purchase from South- western Public Service Company (the "Company"), and the Company agrees to sell to the undersigned, $___________________ principal amount of the Company's [state title of issue] (the "Bonds") offered by the Company's Prospectus dated , 199 and a Prospectus Supplement dated , 199 , receipt of copies of which is hereby acknowledged, at a purchase price of % of the principal amount thereof plus accrued interest and on the further terms and conditions set forth in this contract. The undersigned agrees to purchase such Bonds in the principal amounts and on the delivery dates (the "Delivery Dates") set forth below: Delivery Principal Plus Accrued Date Amount Interest From: -------- --------- -------------- ________________ $_______________ ________________ ________________ $_______________ ________________ ________________ $_______________ ________________ Payment for the Bonds which the undersigned has agreed to purchase on each Delivery Date shall be made to the -2- Company or its order by certified or bank cashier's check in _______________________________* funds at the Corporate Trust Office of (or at such other place as the under- signed and the Company shall agree) at 11:00 A.M., New York City Time, on such Delivery Date upon issuance and delivery to the undersigned of the Bonds to be purchased by the undersigned on such Delivery Date in such authorized denominations and, unless otherwise provided herein, registered in such names as the undersigned may designate by written or telegraphic commu- nications addressed to the Company not less than five full business days prior to such Delivery Date. The obligation of the Company to sell and deliver, and of the undersigned to take delivery of and make payment for, Bonds on each Delivery Date shall be subject to the condi- tions that (1) the purchase of Bonds to be made by the under- signed shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is sub- ject, (2) the sale of the Bonds by the Company pursuant to this contract shall not at the time of delivery be prohibited under the laws of any jurisdiction to which the Company is subject and (3) the Company shall have sold, and delivery shall have taken place, to the Underwriters of such principal amount of the Bonds as is to be sold and delivered to them. In the event that Bonds are not sold to the undersigned because one of the foregoing conditions is not met, the Company shall not be lia- ble to the undersigned for damages arising out of the transac- tions covered by this contract. Promptly after completion of the sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by copies of the opinions of counsel for the Company delivered to the Underwriters. Failure to take delivery of and make payment for Bonds by any purchaser under any other Delayed Delivery Con- tract shall not relieve the undersigned of its obligations under this contract. The undersigned represents and warrants that (a) as of the date of this contract, the undersigned is not prohibited under the laws of the jurisdictions to which the undersigned is subject from purchasing the Bonds hereby agreed to be purchased _________________________ * Insert same day or New York Clearing House funds. -3- and (b) the undersigned does not contemplate selling the Bonds which it has agreed to purchase hereunder prior to the Delivery Date therefor. This contract will inure to the benefit of and be binding upon the parties hereto and their respective succes- sors, but will not be assignable by either party hereto without the written consent of the other. This contract shall be gov- erned by and construed in accordance with the laws of the State of New York. This contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. It is understood that the acceptance of any Delayed Delivery Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If the contract is acceptable to the Com- pany, it is requested that the Company sign the form of accep- tance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the under- signed when such counterpart is so signed. Yours very truly, ____________________________________ By____________________________________ ____________________________________ ____________________________________ Address Accepted, as of the date first above written Southwestern Public Service Company By_________________________________ -4- PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING The name and telephone and department of the repre- sentative of the Purchaser with whom details of delivery on the Delivery Date may be discussed are as follows: (Please print.) Telephone No. Name (Including Area Code) Department SOUTHWESTERN PUBLIC SERVICE COMPANY PURCHASE AGREEMENT FIRST MORTGAGE BONDS [Date] Southwestern Public Service Company Tyler at Sixth Amarillo, Texas 79101 Dear Sirs: Referring to the First Mortgage Bonds (the "Bonds") of Southwestern Public Service Company (the "Company") covered by registration statement on Form S-3 (No. 33-_____), such reg- istration statement including (i) the prospectus included therein, dated __________, ____, as supplemented by a prospec- tus supplement dated __________, ____ in the form first filed under Rule 424 and any additional prospectus supplements relat- ing to the Bonds filed under Rule 424 (such prospectus as so supplemented, including each document incorporated by reference therein is hereinafter called the "Prospectus") and (ii) all documents filed as part thereof or incorporated by reference therein, is hereinafter called the "Registration Statement" on the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and con- ditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Underwriters") severally agree to purchase and the Company agrees to sell to each Underwriter the principal amount of the Company's Bonds having the terms described below (the "Purchased Bonds") set forth opposite the name of each Underwriter on Schedule A hereto. The price at which the Purchased Bonds shall be pur- chased from the Company by the Underwriters shall be ______% plus accrued interest from _______. The initial public offer- ing price shall be ______% plus accrued interest from _______. The Purchased Bonds will be offered by the Underwriters as set forth in the Prospectus relating to such Purchased Bonds. -2- The Purchased Bonds will have the following terms: Title of Bonds: First Mortgage Bonds, % Series due ----------------------- Interest rate: % per annum ----------------------- Interest Payment Dates: ___________ and __________, commencing on ____________, Interest payable on __________, ____ will accrue from ________. Maturity: ___________________________ Redemption Provisions: ___________________________ ___________________________ ___________________________ ___________________________ Sinking Fund Provisions: ___________________________ ___________________________ ___________________________ ___________________________ Other: ____________________________ ____________________________ ____________________________ ____________________________ Payment for the Purchased Bonds shall be made in the following funds: ____________________________ The time of purchase shall be: ____________________________ The place(s) at which the Purchased Bonds shall be delivered and sold shall be: ____________________________ ____________________________ ____________________________ ____________________________ -3- Delayed Delivery Contracts: [authorized] [not authorized] [Delivery Date _______________________ Minimum principal amount of Purchased Bonds to be sold pursuant to any Delayed Delivery Contract: _______________________ Maximum aggregate principal amount of Purchased Bonds to be sold pursuant to all Delayed Delivery Contracts: _______________________ Compensation to Underwriters: _______________________]* Notices to the Underwriters shall be sent to the follow- ing address or telecopier number: If we are acting as Representative(s) for the several Underwriters named in Schedule A hereto, we represent that we are authorized to act for such several Underwriters in connection with the transactions contemplated in this Agreement, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Underwriters. All of the provisions contained in the document enti- tled "Southwestern Public Service Company Standard Purchase - ------------------------- * Delete bracketed information if delayed delivery contracts are not authorized. -4- Provisions - First Mortgage Bonds", a copy of which has been previously furnished to us, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agree- ment to the same extent as if such provisions had been set forth in full herein. If the foregoing is in accordance with your understand- ing of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and each Underwriter in accordance with its terms. Very truly yours, [Firm Name] By _________________________ Title: __________________ [Firm Name] By _________________________ Title: __________________ Acting on behalf of and as Representative(s) of the several Underwriters named in Schedule A hereto.* The foregoing Purchase Agreement is hereby confirmed as of the date first above written. SOUTHWESTERN PUBLIC SERVICE COMPANY By ___________________________ Title: __________________ _________________________ * To be deleted if the Purchase Agreement is not executed by one or more Underwriters acting as Representative(s) of the Underwriters for purposes of this Agreement. SCHEDULE A Principal Name of Underwriter Amount - ------------------- --------- Total __________ $ EX-1.C 4 FOR OF STANDARD PURCHASE PROVISIONS - NEW UNSECURED SECURITIES Exhibit 1(c) SOUTHWESTERN PUBLIC SERVICE COMPANY UNSECURED DEBT SECURITIES STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT SOUTHWESTERN PUBLIC SERVICE COMPANY STANDARD PURCHASE PROVISIONS - UNSECURED DEBT SECURITIES From time to time, Southwestern Public Service Com- pany, a corporation organized and existing under the laws of the State of New Mexico (the "Company"), may enter into pur- chase agreements that provide for the sale of designated secu- rities to the purchaser or purchasers named therein. The stan- dard provisions set forth herein may be incorporated by refer- ence in any such purchase agreement (the "Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." The term "Securities" shall mean the Unsecured Debt Securities of the Company to be sold by the Company pursu- ant to the applicable Purchase Agreement. Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. The Company has filed, in accordance with the provi- sions of the Securities Act of 1933, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder (collectively called the "Act"), with the Securities and Exchange Commission (the "Commission"), a registration statement on Form S-3 (including a prospectus), relating to shares of Preferred Stock of the Company, First Mortgage Bonds, and the Securities, which pursuant to Item 12 of Form S-3 incorporates by reference documents which the Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereun- der (collectively called the "Exchange Act"). Such registra- tion statement has been declared effective by the Commission. Promptly upon the execution of this Agreement, the Company will prepare a prospectus supplement relating to the Securities (the "Prospectus Supplement"). The Company has furnished to you, for use by the Underwriters (as defined herein) and dealers, copies of one or more preliminary prospectuses and the docu- ments so incorporated therein (each thereof, including the doc- uments so incorporated therein, is herein called the "Prelimi- nary Prospectus"). The terms Registration Statement and Pro- spectus shall have the meanings ascribed to them in the Pur- chase Agreement. 1. Introductory. The Company proposes to issue and sell from time to time Securities registered under the Regis- tration Statement. The Securities will be issued pursuant to an Indenture, dated , to as Trustee -2- (the "Trustee"), as supplemented and amended, including a sup- plemental indenture pertaining to the particular series of Securities involved in the offering (the "Indenture"), and will have varying designations, interest rates and times of payment of any interest, maturities, redemption provisions and other terms, with all such terms for any particular series of the Securities being determined at the time of the sale and set forth in the Purchase Agreement and the Prospectus Supplement relating to such series of Securities. The Securities involved in any such offering are hereinafter referred to as the "Pur- chased Securities," and the firm or firms, as the case may be, which agree to purchase the same are hereinafter referred to as the "Underwriters" of the Purchased Securities. The terms "you" and "your" refer to those Underwriters who sign the Pur- chase Agreement either on behalf of themselves only or on behalf of themselves and as representatives of the several Underwriters named in Schedule A thereto, as the case may be. Purchased Securities to be purchased by Underwriters are herein referred to as "Underwriters' Securities," and any Purchased Securities to be purchased pursuant to Delayed Delivery Con- tracts (as defined below) as hereinafter provided are herein referred to as "Contract Securities." 2. Delivery and Payment. The Company will deliver the Underwriters' Securities to you for the accounts of the Underwriters at the place specified in the Purchase Agreement, against payment of the purchase price by certified or bank cashier's check in same day or New York Clearing House funds (as agreed to by the parties and specified in the Purchase Agreement) drawn to the order of the Company, at the time set forth in this Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "time of purchase." Unless otherwise provided for in the Purchase Agreement, the Underwriters' Securities so to be delivered will be in definitive fully registered form registered in such authorized denominations and in such names as you request in writing not later than 10:00 A.M.,* on the third business day prior to the time of purchase, or, if no such request is received, in the names of the respective Underwriters in the amounts agreed to be purchased by them pursuant to this Agree- ment. For the purpose of expediting the checking of the Under- writers' Securities, the Company agrees to make the Underwrit- ers' Securities available to you (at the place specified in the _________________________ * Times mentioned herein are New York City Time. -3- Purchase Agreement) in definitive form not later than 10:00 A.M. on the first business day preceding the time of purchase.* If any Purchase Agreement provides for sales of Pur- chased Securities pursuant to delayed delivery contracts, the Company authorizes the Underwriters to solicit offers to pur- chase Contract Securities pursuant to delayed delivery con- tracts substantially in the form of Schedule I attached hereto (the "Delayed Delivery Contracts") with such changes therein as the Company may approve. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment com- panies, and educational and charitable institutions. At the time of purchase the Company will pay you as compensation, for the accounts of the Underwriters, the compensation set forth in such Purchase Agreement in respect of the principal amount of Contract Securities. The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company executes and deliv- ers Delayed Delivery Contracts, the Contract Securities shall be deducted from the Purchased Securities to be purchased by the several Underwriters and the aggregate principal amount of Purchased Securities to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Purchased Securities set forth opposite each Underwriter's name in such Purchase Agreement, except to the extent that you determine that such reduction shall be otherwise allocated and so advise the Company. 3. Certain Covenants of the Company. The Company agrees: (a) As soon as possible after the execution and delivery of this Agreement to file, or mail for filing, the Prospectus with the Commission pursuant to its Rule 424 under the Act and, if and when required at any time after such execution and delivery, to file amendments to the applications the Company has previously filed with any state regulatory agencies having jurisdiction to govern the Company's issuance of its securities setting forth, among other things, the necessary informa- tion with respect to the price and terms of the _________________________ * As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. -4- Purchased Securities and the terms of offering of the Purchased Securities; (b) To file no amendment or supplement to the Registration Statement or Prospectus subse- quent to the execution of this Agreement to which you object in writing; (c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Purchased Securities for sale under the laws of such jurisdictions as you may desig- nate and in determining their eligibility for investment under the laws of such jurisdictions; provided that the Company shall not be required to qualify as a foreign corporation or to file a gen- eral consent to service of process in any jurisdiction; (d) To the extent not previously furnished to you, to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including all exhibits filed therewith, other than exhibits which have previously been furnished to you), two signed copies of each consent and certificate of independent accountants and of each other person who by his profession gives authority to statements made by him and who is named in the Registration Statement as having prepared, certi- fied or reviewed any part thereof, and to furnish to you sufficient unsigned copies of the foregoing (other than exhibits, including consents filed as exhibits, to the Registration Statement) for dis- tribution of a copy to you and to each of the other Underwriters; (e) To deliver to the Underwriters without charge in New York City as soon as practicable after the execution and delivery of this Agreement and thereafter from time to time to furnish to the Underwriters, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (or as amended or supplemented, if the Company shall have made any amendment or -5- supplement after the effective date of the Registration Statement) as you or the respective Underwriters may reasonably request for the pur- poses contemplated by the Act; (f) To advise you promptly (confirming such advice in writing) of any official request made by the Commission for amendments to the Registration Statement or Prospectus or for additional informa- tion with respect thereto, or of official notice of institution of proceedings for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such order should be entered by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible, or of the suspension of qualification of the Purchased Securities for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; (g) To apply the net proceeds from the sale of the Purchased Securities in the manner set forth in the Prospectus; (h) To furnish to you during a period of five years from the time of purchase (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; (ii) from time to time, copies of any reports or other communications which it shall file with the Commission or any governmental agency substituted therefor under the Exchange Act or sent to its stockholders, or holders of the Purchased Securities, and (iii) such other infor- mation as you may from time to time reasonably request regarding the financial condition and operations of the Company; (i) To furnish to any other Underwriter cop- ies of such of the financial statements, reports or other information referred to in the foregoing subparagraphs (h)(i) and (ii) as such Underwriter may, from time to time during the period you are entitled to receive them, request; -6- (j) To advise the Underwriters of the hap- pening of any event known to the Company within the time during which a prospectus relating to the Purchased Securities is required to be delivered under the Act which, in the judgment of the Com- pany, would require the making of any change in the Prospectus or any amended or supplemented Pro- spectus or in the information incorporated by ref- erence therein so that as thereafter delivered to purchasers such Prospectus will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the state- ments therein, in the light of the circumstances under which they were made, not misleading, and on request to prepare and furnish to the Underwriters and to dealers and other persons designated by you such amendments or supplements (including appro- priate filings under the Exchange Act) to the Pro- spectus as may be necessary to reflect any such change, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Underwriters to so notify the Company cancels the Company's obligation under this Section 3(j)); (k) As soon as practicable, to make gener- ally available to its security holders an earnings statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement; (l) To pay the fees and expenses of counsel for the Underwriters, and to reimburse the Under- writers for their reasonable out-of-pocket expenses incurred in contemplation of the perfor- mance of this Agreement, in the event that the Underwriters' Securities are not delivered to and taken up and paid for by the Underwriters hereun- der for any reason whatsoever except the failure or refusal of any Underwriter to take up and pay for Underwriters' Securities for some reason not permitted by the terms of this Agreement, the Underwriters agreeing to pay the fees and expenses of counsel for the Underwriters in any other event; -7- (m) To pay all expenses, fees and taxes (other than transfer taxes and fees and disburse- ments of counsel for the Underwriters except as set forth under 3(l) above or (iv) below) in con- nection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospec- tus and the Prospectus, any documents incorporated by reference therein at or after the date thereof and any amendments or supplements thereto, and the printing or reproduction and furnishing of copies of each thereof to the Underwriters and to deal- ers, (ii) the issue, sale and delivery of the Pur- chased Securities, (iii) the printing or reproduc- tion of this Agreement and the opinions and let- ters referred to in Section 4(a) hereof, (iv) the qualification of the Purchased Securities for sale and determination of their eligibility for invest- ment under state laws as aforesaid, including the legal fees and all filing fees and disbursements of counsel for the Underwriters and all other fil- ing fees, and the printing or reproduction and furnishing of copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the Underwriters and to dealers, (v) the rating of the Purchased Securities by national rating agencies and (vi) the performance of the Company's other obli- gations hereunder; (n) To furnish to you as early as practi- cable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consoli- dated financial statements, if any, of the Company which have been read by the Company's independent public accountants as stated in their letters to be furnished pursuant to Section 4(a) of this Agreement; and (o) If a public offering of the Purchased Securities is to be made, not to offer or sell any of its other debt securities which are substan- tially similar to the Purchased Securities prior to ten days after the time of purchase without your consent. -8- 4. Conditions of Underwriters' Obligations. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) That, at the time of purchase, you shall receive the signed opinions of Hinkle, Cox, Eaton, Coffield & Hensley; and Cahill Gordon & Reindel, and Rainey, Ross, Rice & Binns; and Foulston & Siefkin, counsel for the Company, and counsel for the Underwriters, substantially in the forms here- tofore furnished to you, addressed to the Under- writers (with reproduced or conformed copies thereof for each of the other Underwriters); and that, at the time of purchase, you shall receive the signed letters of the independent public accountants of the Company, substantially in the form heretofore furnished to you and in substance satisfactory to you addressed to the Underwriters (with reproduced or conformed copies thereof for each of the other Underwriters); (b) That, at or before 5:30 P.M. on the date hereof, or at such later time and day as you may have from time to time consented to in writing or by telephone, confirmed in writing, the orders of the New Mexico Public Utility Commission and the Corporation Commission of Oklahoma, necessary to permit the issue, sale and delivery of the Pur- chased Securities shall have been issued; at the time of purchase such orders shall be in full force and effect; and prior to such time of pur- chase no stop order with respect to the effective- ness of the Registration Statement shall have been issued under the Act by the Commission and at such time of purchase no proceedings therefor shall be pending or threatened; (c) That, at the time the Registration Statement became effective, the Registration Statement did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that at the time of purchase the Prospectus shall not con- tain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements -9- therein, in the light of the circumstances under which they were made, not misleading, other than any statement contained in, or any matter omitted from, the Registration Statement or the Prospectus in reliance upon, and in conformity with, informa- tion furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration Statement or Prospectus; (d) That, subsequent to the respective dates as of which information is given in the Registra- tion Statement and in the Prospectus, at the time the Prospectus is first filed, or mailed for fil- ing, pursuant to Rule 424 under the Act, and prior to the time of purchase, in your opinion no mate- rial adverse change, or any development involving a prospective material adverse change, in the con- dition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time); (e) That the Company shall have performed all of its obligations under this Agreement which are to be performed by the terms hereof at or before the time of purchase; (f) That the Company shall, at the time of purchase, deliver to you (with reproduced or con- formed copies thereof for each of the other Under- writers) a signed certificate of two of its execu- tive officers stating that, subsequent to the respective dates as of which information is given in the Registration Statement and in the Prospec- tus, at the time the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, and prior to the time of purchase, no mate- rial adverse change, or any development involving a prospective material adverse change, in the con- dition of the Company, financial or otherwise, shall have taken place (other than as referred to in or contemplated by the Registration Statement and Prospectus as of such time) and also covering the matters set forth in (c) and (e) of this Sec- tion 4; and -10- (g) That the Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwrit- ers have been approved by the Company. 5. Termination of Agreement. The obligations of the several Underwriters hereunder shall be subject to termina- tion in your absolute discretion, if, at any time prior to the time of purchase, trading in securities on the New York Stock Exchange shall have been suspended (other than a temporary sus- pension to provide for an orderly market) or minimum prices shall have been established on the New York Stock Exchange, or if a banking moratorium shall have been declared either by the United States or New York State authorities, or if after the execution of this Agreement the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on the financial markets of the United States as, in your judgment, to make it impracti- cable to market the Purchased Securities. If you elect to terminate this Agreement as provided in this Section 5, the Company and each other Underwriter shall be notified promptly in writing or by telephone, confirmed in writing. If the sale to the Underwriters of the Underwriters' Securities, as herein contemplated, is not carried out by the Underwriters for any reason permitted hereunder or if such sale is not carried out because the Company shall be unable to com- ply with any of the terms thereof, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 3(l), 3(m), 7(b) and 9 hereof), and the Underwriters shall be under no obligation or liability to the Company (except to the extent provided in Sec- tions 8(b) and 9 hereof) or to one another under this Agreement. 6. Increase in Underwriters' Commitments: If any Underwriter shall default in its obligation to take up and pay for the Purchased Securities to be purchased by it hereunder and if the principal amount of the Purchased Securities which all Underwriters so defaulting shall have so failed to take up and pay for does not exceed 10% of the total principal amount of the Purchased Securities, the non-defaulting Underwriters shall take up and pay for (in addition to the principal amount -11- of the Purchased Securities they are obligated to purchase pur- suant to this Agreement) the principal amount of the Purchased Securities agreed to be purchased by all such defaulting Under- writers, as herein provided. Such Purchased Securities shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Purchased Securities shall be taken up and paid for by all non-defaulting Underwrit- ers pro rata in proportion to the principal amount of the Pur- chased Securities set opposite the names of all such non- defaulting Underwriters in Schedule A to the Purchase Agreement. Without relieving any defaulting Underwriter of its obligations hereunder, the Company agrees with the non-default- ing Underwriters that it will not sell any Purchased Securities hereunder unless all of the Underwriters' Securities are pur- chased by the Underwriters (or by substituted Underwriters selected by you with the approval of the Company or selected by the Company with your approval). If a new underwriter or underwriters are substituted by the Underwriters or by the Company for a defaulting Under- writer or Underwriters in accordance with the foregoing provi- sion, the Company or you will have the right to postpone the time of purchase for a period of not exceeding five business days in order that necessary changes in the Registration State- ment and Prospectus and other documents may be effected. The term Underwriter as used in this Agreement will refer to and include any underwriter substituted under this Section 6 with like effect as if such substituted underwriter had originally been named in Schedule A to the Purchase Agreement. 7. Warranties and Representations of and Indemnity by the Company. (a) The Company warrants and represents that, when the Registration Statement became effective, the Registra- tion Statement complied in all material respects, and, when the Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under the Act, the Prospectus will comply in all mate- rial respects with the provisions of the Act, and that neither will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or neces- sary to make the statements therein not misleading; provided, however, that the Company makes no warranty or representation -12- with respect to any statement contained in, or any matter omit- ted from, the Registration Statement or the Prospectus in reli- ance upon and in conformity with information furnished in writ- ing by or on behalf of any Underwriter through you to the Com- pany expressly for use with reference to the Underwriter in the Registration Statement or Prospectus. The Company also war- rants and represents that the documents incorporated by refer- ence in the Prospectus comply in all material respects with the requirements of the Exchange Act and any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein, or neces- sary to make the statements therein, in the light of the cir- cumstances under which they are made, not misleading. (b) The Company agrees to indemnify and hold harm- less each Underwriter, and any person who controls any Under- writer within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact in the Registration Statement, any prospectus contained in the Registration State- ment at the time it became effective or the Prospectus, or any related preliminary prospectus, or arises out of or is based upon any alleged omission to state therein a material fact required to be stated therein or necessary to make the state- ments made therein not misleading. The foregoing shall not cover any such loss, expense, liability or claim, however, which arises out of or is based upon any alleged untrue state- ment of a material fact contained in, and in conformity with information furnished in writing by or on behalf of such Under- writer through you to the Company expressly for use with refer- ence to the Underwriter in, any such documents or arises out of or is based upon any alleged omission to state a material fact in connection with such information required to be stated in any such documents or necessary to make such information not misleading. If any action is brought against an Underwriter or controlling person in respect of which indemnity may be sought against the Company pursuant to the foregoing paragraph, such Underwriter shall promptly notify the Company in writing or by telephone, confirmed in writing, of the institution of such action and the Company shall assume the defense of such action, including the employment of counsel and payment of expenses. -13- Such Underwriter or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless the employment of such counsel shall have been authorized in writing by the Com- pany in connection with the defense of such action or the Com- pany shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses of one counsel for all indem- nified parties selected by you shall be borne by the Company. Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action effected without its written consent. The Com- pany's indemnity agreement contained in this Section 7(b) and its warranties and representations contained in this Agreement shall remain in full force and effect regardless of any inves- tigation made by or on behalf of any Underwriter or controlling person, and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Securities. The Company agrees promptly to notify the Underwriters of the com- mencement of any litigation or proceedings against the Company or any of its officers or directors in connection with the issue and sale of the Purchased Securities or with such Regis- tration Statement or Prospectus. 8. Warranties and Representations of and Indemnity by Underwriters. (a) Each Underwriter warrants and represents that the information furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in the Registration State- ment at the time it became effective or the Prospectus, or any related preliminary prospectus does not contain an untrue statement of a material fact and does not omit to state a mate- rial fact in connection with such information required to be stated in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus or necessary to make such information not misleading. Each Underwriter, in addition to other information furnished by such Underwriter or on its behalf through you to the Company in writing expressly for use with reference to such Underwriter in the Registration Statement and Prospectus, hereby furnishes to the Company in writing expressly for use with reference to such -14- Underwriter the statements with respect to the terms of offer- ing of the Purchased Securities by the Underwriters set forth on the cover page of the Prospectus Supplement and under "Underwriting" therein. (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and its officers from and against any loss, expense, liability or claim which arises out of or is based upon any alleged untrue statement of a material fact contained in, and in conformity with informa- tion furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with reference to such Underwriter in, the Registration Statement, any prospectus contained in the Registration Statement at the time it became effective or the Prospectus, or any related preliminary pro- spectus, or arises out of or is based upon any alleged omission to state a material fact in connection with such information required to be stated in such documents or necessary to make such information not misleading. If any action is brought against the Company or any such person in respect of which indemnity may be sought against any Underwriter pursuant to the foregoing paragraph, the Com- pany or such person shall promptly notify such Underwriter in writing or by telephone, confirmed in writing, of the institu- tion of such action and such Underwriter shall assume the defense of such action, including the employment of counsel and payment of expenses. The Company or such person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel shall have been authorized in writing by such Under- writer in connection with the defense of such action or such Underwriter shall not have employed counsel to have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to such Underwriter (in which case such Underwriter shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses for all indemnified parties of one counsel selected by the Company shall be borne by such Underwriter. Anything in this paragraph to the con- trary notwithstanding, no Underwriter shall be liable for any settlement of any such claim or action effected without the written consent of such Underwriter. The indemnity agreement on the part of each Underwriter contained in this Section 8(b) -15- shall remain in full force and effect regardless of any inves- tigation made by or on behalf of the Company or such person, and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Securities. Each Under- writer agrees promptly to notify the Company of the commence- ment of any litigation or proceedings against such Underwriter in connection with the issue and sale of the Purchased Securi- ties or with such Registration Statement or Prospectus. 9. Contribution. If the indemnification provided for in Sections 7(b) or 8(b) above is unavailable in respect of any losses, expenses, liabilities or claims referred to therein, then the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses except to the extent that contribution is not per- mitted under the Act or the Exchange Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Secu- rities (taking into account the portion of the proceeds of the offering realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable con- siderations appropriate under the circumstances. The Company and the Underwriters and such controlling persons agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Underwriters and such controlling persons were treated as one entity for such purpose). The contribution agreement contained in this Section 9 shall remain in full force and effect regard- less of any investigation made by or on behalf of any Under- writer or the Company or any of its officers or directors or any controlling person and shall survive any termination of this Agreement or the issuance and delivery of the Purchased Securities. 10. Notices. All statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent by registered mail to the address furnished in writing for the purpose of such statements, requests, notices and agreements hereunder, and, if to the Company shall be suffi- cient in all respects if delivered or sent by registered mail to the Company at Tyler at Sixth, Amarillo, Texas 79101, Atten- tion: Chairman of the Board. -16- 11. Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this agreement. 12. Parties in Interest. The Agreement herein set forth has been and is made solely for the benefit of the Under- writers and the Company, and the controlling persons, directors and officers referred to in Sections 7, 8 and 9 hereof, and their respective successors, assigns, executors and administra- tors, and no other person shall acquire or have any right under or by virtue of this Agreement. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation (including, without limitation, any pur- chaser of the Purchased Securities from an Underwriter or any subsequent holder thereof or any purchaser of any Contract Securities or any subsequent holder thereof) any legal or equi- table right, remedy or claim under or in respect of this Agree- ment or any provision herein contained. The term "successor" as used in this Agreement shall not include any purchaser, as such purchaser, of any Purchased Securities from any Underwriter or any subsequent holder thereof or any purchaser, as such purchaser, of any Contract Securities or any subsequent holder thereof. 13. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall consti- tute one and the same instrument. Schedule I DELAYED DELIVERY CONTRACT Dated: , 199 SOUTHWESTERN PUBLIC SERVICE COMPANY Tyler at Sixth Amarillo, Texas 79101 Attention: Dear Sirs: The undersigned hereby agrees to purchase from South- western Public Service Company (the "Company"), and the Company agrees to sell to the undersigned, $___________________ principal amount of the Company's [state title of issue] (the "Securities") offered by the Company's Prospectus dated , 199 and a Prospectus Supplement dated , 199 , receipt of copies of which is hereby acknowledged, at a purchase price of % of the principal amount thereof plus accrued interest and on the further terms and conditions set forth in this contract. The undersigned agrees to purchase such Securities in the principal amounts and on the delivery dates (the "Delivery" "Dates") set forth below: Delivery Principal Plus Accrued Date Amount Interest From: -------- --------- -------------- ________________ $_______________ ________________ ________________ $_______________ ________________ ________________ $_______________ ________________ Payment for the Securities which the undersigned has agreed to purchase on each Delivery Date shall be made to the -2- Company or its order by certified or bank cashier's check in _______________________________* funds at the Corporate Trust Office of (or at such other place as the under- signed and the Company shall agree) at 11:00 A.M., New York City Time, on such Delivery Date upon issuance and delivery to the undersigned of the Securities to be purchased by the under- signed on such Delivery Date in such authorized denominations and, unless otherwise provided herein, registered in such names as the undersigned may designate by written or telegraphic com- munications addressed to the Company not less than five full business days prior to such Delivery Date. The obligation of the Company to sell and deliver, and of the undersigned to take delivery of and make payment for, Securities on each Delivery Date shall be subject to the conditions that (1) the purchase of Securities to be made by the undersigned shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the undersigned is subject, (2) the sale of the Securities by the Company pursuant to this contract shall not at the time of delivery be prohib- ited under the laws of any jurisdiction to which the Company is subject and (3) the Company shall have sold, and delivery shall have taken place, to the Underwriters of such principal amount of the Securities as is to be sold and delivered to them. In the event that Securities are not sold to the undersigned because one of the foregoing conditions is not met, the Company shall not be liable to the undersigned for damages arising out of the transactions covered by this contract. Promptly after completion of the sale and delivery to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by copies of the opinions of counsel for the Company delivered to the Underwriters. Failure to take delivery of and make payment for Bonds by any purchaser under any other Delayed Delivery Con- tract shall not relieve the undersigned of its obligations under this contract. The undersigned represents and warrants that (a) as of the date of this contract, the undersigned is not prohibited under the laws of the jurisdictions to which the undersigned is subject from purchasing the Securities hereby agreed to be _________________________ * Insert same day or New York Clearing House funds. -3- purchased and (b) the undersigned does not contemplate selling the Securities which it has agreed to purchase hereunder prior to the Delivery Date therefor. This contract will inure to the benefit of and be binding upon the parties hereto and their respective succes- sors, but will not be assignable by either party hereto without the written consent of the other. This contract shall be gov- erned by and construed in accordance with the laws of the State of New York. This contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. It is understood that the acceptance of any Delayed Delivery Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If the contract is acceptable to the Com- pany, it is requested that the Company sign the form of accep- tance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the under- signed when such counterpart is so signed. Yours very truly, ____________________________________ By____________________________________ ____________________________________ ____________________________________ Address Accepted, as of the date first above written Southwestern Public Service Company By_________________________________ -4- PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING The name and telephone and department of the repre- sentative of the Purchaser with whom details of delivery on the Delivery Date may be discussed are as follows: (Please print.) Telephone No. Name (Including Area Code) Department SOUTHWESTERN PUBLIC SERVICE COMPANY PURCHASE AGREEMENT UNSECURED DEBT SECURITIES _______________, 1996 Southwestern Public Service Company Tyler at Sixth Amarillo, Texas 79101 Dear Sirs: Referring to the Unsecured Debt Securities, ______% Series due (the "Securities"), of Southwestern Public Ser- vice Company (the "Company") covered by registration statement on Form S-3 (No. 33-53171), such registration statement includ- ing (i) the prospectus included therein, dated __, 1996, as supplemented by a prospectus supplement dated ______________, 1996 in the form first filed under Rule 424 and any additional prospectus supplements relating to the Securi- ties filed under Rule 424 (such prospectus as so supplemented, including each document incorporated by reference therein is hereinafter called the "Prospectus") and (ii) all documents filed as part thereof or incorporated by reference therein, is hereinafter called the "Registration Statement" on the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Underwriters") severally agree to purchase and the Company agrees to sell to each Underwriter the principal amount of the Company's Securities having the terms described below (the "Purchased Securities") set forth opposite the name of each Underwriter on Schedule A hereto. The price at which the Purchased Securities shall be purchased from the Company by the Underwriters shall be ______%. The initial public offering price shall be ______%. The Pur- chased Securities will be offered by the Underwriters as set forth in the Prospectus relating to such Purchased Securities. The Purchased Securities will have the following terms: Title of Securities: ____________________________ -2- Interest rate: ____________________________ Interest Payment Dates: ____________________________ ____________________________ ____________________________ ____________________________ ____________________________ Maturity: ____________________________ Redemption Provisions: ____________________________ ____________________________ ____________________________ Other: ____________________________ ____________________________ ____________________________ ____________________________ ____________________________ ____________________________ ____________________________ Payment for the Purchased Securities shall be made in the following funds: ____________________________ The time of purchase shall be: ____________________________ The place(s) at which the Purchased Securities shall be delivered and sold shall be: ____________________________ Delayed Delivery Contracts: ______________________________ Notices to the Underwriters shall be sent to the following address or telecopier number: -3- If we are acting as Representative(s) for the several Underwriters named in Schedule A hereto, we represent that we are authorized to act for such several Underwriters in connection with the transactions contemplated in this Agreement, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Underwriters. All of the provisions contained in the document enti- tled "Southwestern Public Service Company Standard Purchase Pro- visions - Unsecured Debt Securities," a copy of which has been previously furnished to us, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agree- ment to the same extent as if such provisions had been set forth in full herein. -4- If the foregoing is in accordance with your understand- ing of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the Underwriter in accordance with its terms. Very truly yours, [Firm Name] By ________________________________ Title: [Firm Name] By ________________________________ Title: Acting on behalf of and as Representative(s) of the several Underwriters named in Schedule A hereto.* The foregoing Purchase Agreement is hereby confirmed as of the date first above written. SOUTHWESTERN PUBLIC SERVICE COMPANY By ___________________________ Title: _________________________ * To be deleted if the Purchase Agreement is not executed by one or more Underwriters acting as Representative(s) of the Underwriters for purposes of this Agreement. SCHEDULE A Principal Name of Underwriter Amount Total __________ $ ---------- EX-4.C 5 SUPPLEMENTAL INDENTURE Exhibit 4(c) SOUTHWESTERN PUBLIC SERVICE COMPANY TO CHEMICAL BANK (Successor by Merger to The New York Trust Company and Chemical Bank New York Trust Company), As Trustee _____________________ SUPPLEMENTAL INDENTURE DATED MARCH 1, 1996, SUPPLEMENTAL TO INDENTURE OF MORTGAGE AND DEED OF TRUST, DATED AUGUST 1, 1946 THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY _____________________ RELATES TO FIRST MORTGAGE BONDS, 6 1/2% SERIES DUE 2006 THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS SUPPLEMENTAL INDENTURE, dated the 1st day of March, 1996, between SOUTHWESTERN PUBLIC SERVICE COMPANY, a corpora- tion organized and existing under the laws of the State of New Mexico (hereinafter called the "Company"), party of the first part, and CHEMICAL BANK (successor by merger to The New York Trust Company and Chemical Bank New York Trust Company), a cor- poration organized and existing under the laws of the State of New York, as Trustee under the Indenture hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. WHEREAS, the Company executed and delivered to The New York Trust Company, as Trustee, an Indenture of Mortgage and Deed of Trust dated August 1, 1946 (hereinafter called the "Original Indenture") and executed and delivered to The New York Trust Company or to Chemical Bank New York Trust Company or to Chemical Bank, as Trustee, supplemental indentures dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, February 1, 1956, October 1, 1959, February 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965, February 1, 1967, October 1, 1970, May 1, 1971, October 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two supplemental indentures dated October 1, 1981, July 1, 1982, two supplemental indentures dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two supplemental indentures dated July 15, 1992, two sup- plemental indentures dated December 1, 1992, and a supplemental indenture dated February 15, 1995 (hereinafter called the "Sup- plemental Indentures"), to secure authorized issues of First Mortgage Bonds (hereinafter called the "Bonds") of the Company; and WHEREAS, on September 8, 1959, The New York Trust Company was merged under the Banking Law of New York into Chemical Corn Exchange Bank under the name of Chemical Bank New York Trust Company and on February 17, 1969, Chemical Bank New York Trust Company was merged under the Banking Law of New York -2- into Chemical Bank under the name of Chemical Bank, which is now the Trustee under the Original Indenture and Supplemental Indentures; and WHEREAS, First Mortgage Bonds of the following Series were duly issued under and in accordance with the terms of the Original Indenture and the Supplemental Indentures and as of the date of this Supplemental Indenture are outstanding in the aggregate principal amounts set opposite the designations of the Series:
Principal Amounts Series Outstanding ------ ------------------ 5.70% Series due 1997 ...................... $ 15,000,000 6.875% Series due 1999 ..................... $ 90,000,000 13 1/2% Series due 2001 .................... $ 25,000,000 6 1/2% Series due 2004 ..................... $ 25,000,000 7 1/4% Series due 2004 ..................... $135,000,000 6 5/8% Series due 2009 ..................... $ 32,300,000 8.20% Series due 2022 ...................... $100,000,000 8 1/4% Series due 2022 ..................... $ 40,000,000 8 1/2% Series due 2025...................... $ 70,000,000
and WHEREAS, as permitted by the Original Indenture, the Company by resolutions of its Board of Directors duly adopted has determined to create a new series of Bonds to be known as First Mortgage Bonds, 6 1/2% Series due 2006 (hereinafter called "Bonds of the New Series" or "Bonds of Series due 2006") in the form and having the characteristics set forth in this Supple- mental Indenture; and WHEREAS, the Company has paid, redeemed or otherwise retired and heretofore delivered to the Trustee certain Bonds not heretofore made the basis of the issuance of additional Bonds under Article 6 of the Original Indenture as heretofore supplemented and it desires to issue Bonds of Series due 2006 against such retired Bonds; and WHEREAS, the Company has purchased, constructed or otherwise acquired subsequent to the execution and delivery of the Original Indenture certain Property Additions not hereto- fore specifically mortgaged and pledged under the Original Indenture as heretofore supplemented and it desires by the inclusion of the descriptions thereof in this Supplemental -3- Indenture to specifically mortgage and pledge such property; and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under and by virtue of the provisions of the Original Indenture, as hereto- fore supplemented, and particularly the provisions contained in Articles Two and Eighteen thereof, and pursuant to appropriate resolutions of its Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Sup- plemental Indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been done, per- formed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized, and this Supplemen- tal Indenture has been authorized by resolution duly adopted by a vote of a majority of the entire Board of Directors of the Company; NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in consideration of the premises and of one dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and of other good and valuable consideration, in order to better secure the payment both of the principal of and interest on all Bonds issued under the Original Indenture and the Supplemental Indentures and that may be issued under this or any other indenture supplemental to the Original Indenture, according to their tenor and effect, and the performance by the Company of all the covenants and conditions therein and herein contained, and in order to establish the terms of the Bonds of the New Series, hereby further covenants and agrees to and with the Trustee and its successors in the trust under the Original Indenture for the benefit of all those who shall from time to time hold the Bonds and interest coupons, if any, pertaining thereto, as herein set forth, and does hereby ratify and con- firm its mortgage and pledge to the Trustee of all property described in the Original Indenture and the Supplemental Inden- tures and does by these presents grant, bargain, sell, warrant, alien, remise, release, convey, confirm, assign, transfer, mortgage, pledge, and set over unto the Trustee and to its suc- cessors and assigns forever the described property set forth in Exhibit A hereto (which shall for all purposes be treated as being set forth in full herein) constituting property acquired -4- by the Company since the execution and delivery of the Original Indenture, and not heretofore specifically mortgaged and pledged under the Original Indenture as heretofore supplemented. TOGETHER with all buildings, improvements, plants, stations and substations located on the property referred to in Exhibit A hereto (in the case of those located on leased prop- erty, all of the Company's interest therein) or upon any other property or rights of way now or hereafter owned by the Com- pany, together with all easements, rights of way, permits, privileges, towers, poles, machinery, transformers, insulators, equipment, appliances, appurtenances, and all other property, real or personal, of the Company forming a part of, or pertain- ing to, or used, occupied or enjoyed by the Company in connec- tion with, said improvements and miscellaneous property. Also all other property, real, personal and mixed, which the Company now owns and which the Company may hereafter acquire. TOGETHER with, all and singular, the tenements, here- ditaments and appurtenances belonging or in anywise apper- taining to said property or any part thereof with the reversion and reversions, remainder and remainders, tolls, rents, reve- nues, issues, earnings, income, products and profits thereof, and all the estate, right, title and interest and claim whatso- ever, at law as well as in equity, which the Company now has or may hereafter acquire in and to said property, rights and fran- chises, and every part and parcel thereof; EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from this Supplemental Indenture and from the lien and operation hereof: (a) any and all property of the character expressly excepted and excluded from the Original Indenture as here- tofore supplemented and from the lien and operation thereof, referred to therein as Excepted Property; and (b) all property which has been released by the Trustee or otherwise disposed of by the Company free from the lien of the Original Indenture, as heretofore supple- mented, in accordance with the provisions thereof; TO HAVE AND TO HOLD all such properties, real, per- sonal and mixed, mortgaged, pledged or conveyed by the Company -5- as aforesaid, or intended so to be, unto the Trustee and its successors and assigns forever; SUBJECT HOWEVER, to the exceptions hereinabove recited, and to Permitted Encumbrances as defined in Section 4.01 of the Original Indenture, and liens existing on any prop- erty hereafter acquired by the Company at the time of such acquisition and permitted by Section 9.15 of the Original Indenture, Section 3.02 of the Supplemental Indenture dated February 1, 1967, and Section 2.02 of the Supplemental Inden- tures dated March 1, 1979, October 1, 1981, the two Supplemen- tal Indentures dated July 15, 1992, the two Supplemental Inden- tures dated December 1, 1992, the Supplemental Indenture dated February 15, 1995 and of this Supplemental Indenture; IN TRUST, NEVERTHELESS, for the purposes and upon the trusts, terms and conditions, and subject to and with the pro- visos and covenants set forth in the Original Indenture, the Supplemental Indentures and this Supplemental Indenture with the same effect in all respects as if the property and rights herein described and herein conveyed to the Trustee had at the time of the execution and delivery of the Original Indenture been owned by the Company and had been specifically and at length described in and conveyed to the Trustee by the Original Indenture as a part of the property therein stated to be con- veyed and as if this Supplemental Indenture had been executed and delivered at the time of the execution and delivery of the Original Indenture. ARTICLE ONE BONDS OF THE NEW SERIES Section 1.01. There is hereby created a series of Bonds, known as and entitled "First Mortgage Bonds, 6 1/2% Series due 2006," and the form thereof shall be as provided in this Supplemental Indenture. The aggregate principal amount of Bonds of the New Series which may be authenticated and delivered and outstanding under the Original Indenture and this Supplemental Indenture shall be unlimited except as provided in Articles Two, Three, Four, Five and Six of the Original Indenture, as amended by the Supplemental Indenture dated February 9, 1977. Bonds of the New Series shall bear interest at the rate of 6 1/2% per annum until the principal thereof becomes due and payable and there- after, if default be made in the payment of such principal, at -6- the rate of 6% per annum until the principal thereof shall be paid and shall mature March 1, 2006. Bonds of the New Series shall be registered Bonds in book-entry or definitive form without coupons of the denomina- tions of $1,000 and any integral multiple of $1,000 which may be executed by the Company and delivered to the Trustee for authentication and delivery. Bonds of the New Series, if authenticated and delivered prior to September 1, 1996, shall be dated March 8, 1996, and, if authenticated and delivered on or after September 1, 1996, shall be dated as provided in Section 2.05 of the Original Indenture. Bonds of the New Series shall bear interest from their respective dates, such interest to be payable on September 1, 1996 and semi-annually thereafter on the first day of March and September in each year. The principal of and interest on the Bonds of the New Series shall be payable at the principal corporate trust office of the Trustee or its successor in trust under the Indenture, in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts. Notwith- standing anything in the Original Indenture or this Supplemen- tal Indenture to the contrary, so long as the Bonds are in a book-entry only system, payment of principal of and interest on the Bonds of the New Series will be in accordance with arrange- ments with The Depository Trust Company, New York, New York and its successors and assigns ("DTC"). Bonds of the New Series shall be subject to redemption as provided in Section 1.03 of this Supplemental Indenture. Definitive Bonds of the New Series may be issued in the form of engraved Bonds or Bonds lithographed or printed with steel engraved borders, and the signature of the Chairman of the Board, the President or a Vice-President and of the Sec- retary or an Assistant Secretary of the Company may be fac- simile. Subject to the foregoing provisions of this Section, definitive Bonds of the New Series, upon surrender to the Trus- tee at its principal corporate trust office, shall be exchange- able for other Bonds of the same series (dated March 8, 1996, in the case of an exchange prior to September 1, 1996 and dated as provided in Section 2.05 of the Original Indenture in case of an exchange on or after September 1, 1996) in such autho- rized denomination or denominations in the same aggregate prin- cipal amount, as may be requested by the holder surrendering the same. No charge for any such exchange shall be made except -7- for taxes or governmental charges. The Company will execute, and the Trustee shall authenticate and deliver, Bonds whenever the same shall be required for any such exchange. If the Bonds of the New Series are to be issued in book-entry form only, notwithstanding any provision of the Original Indenture or this Supplemental Indenture to the con- trary, unless the Company shall otherwise direct (which direc- tion shall promptly be given at the written request of the Com- pany), all Bonds of the New Series issued hereunder shall be registered in the name of Cede & Co., as nominee of DTC, as registered owner of the Bonds of the New Series, and held in the custody of DTC. Unless otherwise requested by DTC, a sin- gle certificate will be issued and delivered to DTC. Benefi- cial owners of Bonds of the New Series will not receive physi- cal delivery of Bond certificates except as provided herein- after. For so long as DTC shall continue to serve as securi- ties depository for the Bonds of the New Series as provided herein, all transfers of beneficial ownership interests will be made by book-entry only, and no investor or other party pur- chasing, selling or otherwise transferring beneficial ownership of Bonds of the New Series is to receive, hold or deliver any Bond certificate. With respect to Bonds of the New Series registered in the name of Cede & Co., as nominee of DTC, the Trustee and the Company shall have no responsibility or obligation to the secu- rities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created to hold securities to facilitate the clearance and settlement of securities transactions among DTC Partici- pants ("DTC Participants") or to any person on whose behalf a DTC Participant holds an interest in the Bonds of the New Series. Without limiting the immediately preceding sentence, the Trustee and the Company shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any own- ership interest in the Bonds of the New Series, (ii) the deliv- ery to any DTC Participant or any other person, other than a registered owner of the Bonds of the New Series, as shown on the registration books, of any notice with respect to the Bonds of the New Series, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of the Bonds of the New Series, as shown on the registration books, of any amount with respect to principal of or premium, if any, or interest on the Bonds of the New Series. -8- If the Bonds of the New Series are to be issued in book-entry form only, replacement Bonds may be issued directly to beneficial owners of Bonds of the New Series other than DTC, or its nominee, but only in the event that (i) DTC determines not to continue to act as securities depository for the Bonds of the New Series (which determination shall become effective by the giving of reasonable notice to the Company or the Trus- tee); or (ii) the Company has advised DTC of its determination (which determination is conclusive as to DTC and beneficial owners of the Bonds of the New Series) to terminate the ser- vices of DTC as securities depository for the Bonds of the New Series; or (iii) the Company has determined (which determina- tion is conclusive as to DTC and the beneficial owners of the Bonds of the New Series) that the interests of the beneficial owners of the Bonds of the New Series might be adversely affected if such book-entry only system of transfer is contin- ued. Upon occurrence of the event set forth in (i) above, the Company shall use its best efforts to attempt to locate another qualified securities depository. If the Company fails to locate another qualified securities depository to replace DTC, the Company shall direct the Trustee to cause to be authenti- cated and delivered replacement Bonds of the New Series, in certificate form, to the beneficial owners of the Bonds of the New Series. In the event that the Company makes the determina- tion noted in (ii) or (iii) above (provided that the Company undertakes no obligation to make any investigation to determine the occurrence of any events that would permit the Company to make any such determination), and has made provisions to notify the beneficial owners of Bonds of the New Series of such deter- mination by mailing an appropriate notice to DTC, the Company shall cause to be issued replacement Bonds of the New Series in certificate form to beneficial owners of the Bonds of the New Series as shown on the records of DTC provided to the Trustee and the Company. Whenever, during the term of the Bonds of the New Series, the beneficial ownership thereof is determined by a book-entry at DTC, the requirements in the Original Indenture or this Supplemental Indenture of holding, delivering or trans- ferring Bonds or selection of Bonds to be redeemed shall be deemed modified to require the appropriate person or entity to meet the requirements of DTC as to registering or transferring the book-entry to produce the same effect. If the Bonds of the New Series are to be issued in book-entry form only, notwithstanding any provision of the Original Indenture or this Supplemental Indenture to the -9- contrary, all Bonds of the New Series issued hereunder, if DTC so requires, shall bear a legend substantially to the following effect: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company or its agent for reg- istration of transfer, exchange, or payment, and any cer- tificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized repre- sentative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized rep- resentative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. If the Bonds of the New Series are to be issued in book-entry form only, the Company and the Trustee shall enter into a letter of representations with DTC to implement the book-entry only system of Bond registration described above. If at any time DTC ceases to hold the Bonds of the New Series, all references herein to DTC shall be of no further force or effect. Section 1.02. The text of the Bonds of the New Series and the certificate of authentication of the Trustee to be executed thereon are to be substantially in the following forms, respectively: (FORM OF FACE OF BONDS OF THE NEW SERIES) CUSIP NO. 845743BD4 No. R ........... $............ SOUTHWESTERN PUBLIC SERVICE COMPANY First Mortgage Bond, 6 1/2% Series due 2006 Due March 1, 2006 SOUTHWESTERN PUBLIC SERVICE COMPANY (hereinafter called the "Company"), a corporation organized and existing under the laws of the State of New Mexico, for value received, hereby promises to pay to or registered assigns, on the first day of March, 2006 DOLLARS in any coin or currency of the United States of America which at -10- the time of payment shall be legal tender for the payment of public and private debts, and to pay interest thereon from the date hereof, at the rate of 6 1/2 percent per annum, payable in like coin or currency semi-annually on March 1 and September 1 in each year, commencing September 1, 1996 until the principal hereof shall have become due and payable, and thereafter if default be made in the payment of such principal, at the rate of six percent per annum, until the principal hereof shall be paid. The principal of and interest on this Bond are pay- able at the principal corporate trust office of Chemical Bank or its successor in trust under the Indenture (as hereinafter defined), in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose). Notwithstanding anything in the Indenture of Mortgage and Deed of Trust dated August 1, 1946 (hereinafter called the "Original Indenture") or this Sup- plemental Indenture to the contrary, so long as the Bonds are in a book-entry only system, payment of principal of and inter- est on this Bond will be in accordance with arrangements with The Depository Trust Company ("DTC"). The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all pur- poses have the same effect as though fully set forth at this place. This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been duly executed by Chemical Bank, as Trustee, or its successor, as Trustee, under the Indenture. -11- IN WITNESS WHEREOF, the Company has caused this Bond to be signed in its name by the manual or facsimile signature of its Chairman of the Board, its President or a Vice-President and its corporate seal to be impressed or imprinted hereon and attested by the manual or facsimile signature of its Secretary or an Assistant Secretary. Dated SOUTHWESTERN PUBLIC SERVICE COMPANY, By Chairman of the Board Attest: Secretary (FORM OF TRUSTEE'S CERTIFICATE FOR BONDS OF THE NEW SERIES) This is one of the Bonds described in the within mentioned Indenture, CHEMICAL BANK As Trustee By Authorized Officer (FORM OF REVERSE OF BONDS OF THE NEW SERIES) This Bond is one of an authorized issue of Bonds of the Company known as its "First Mortgage Bonds," issued and to be issued in one or more series under, and all equally and rat- ably secured (except as any sinking, amortization improvement, renewal or other analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the Bonds of any particular series) by, the Original Indenture, as supplemented (a) by Sup- plemental Indentures dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, and February 1, 1956, executed by the Company to The New York Trust Company, as -12- Trustee, (b) by Supplemental Indentures dated October 1, 1959, February 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965 and February 1, 1967, from the Company to Chemical Bank New York Trust Company, as Trustee, and (c) by Supplemental Indentures dated October 1, 1970, May 1, 1971, October 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two Supplemental Indentures dated October 1, 1981, July 1, 1982, two Supplemental Indentures dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two Supplemental Indentures dated July 15, 1992, two Sup- plemental Indentures dated December 1, 1992 and Supplemental Indentures dated February 15, 1995 and March 1, 1996, from the Company to Chemical Bank (hereinafter called the "Trustee"), successor by merger to The New York Trust Company and Chemical Bank New York Trust Company, as Trustee (said Mortgage and Deed of Trust as so supplemented being hereinafter collectively called the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the holders of said Bonds and the coupons appurtenant to coupon Bonds and of the Trustee and of the Company in respect of such security, and the terms and conditions upon which said Bonds are and are to be secured. To the extent permitted by the Indenture and as provided therein, with the consent of the Company and upon the written consent or affirmative vote of the holders of at least sixty-six and two- thirds percent in principal amount of the Bonds then outstand- ing and entitled to consent, and of the holders of not less than sixty-six and two-thirds percent in principal amount of the Bonds then outstanding and entitled to consent of each series affected thereby in case one or more but less than all of the series of Bonds issued under the Indenture are so affected, the rights and obligations of the Company and of the holders of Bonds and coupons appurtenant to coupon Bonds, and the terms and provisions of the Indenture and of any instrument supplemental thereto may be modified from time to time, pro- vided that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium on, the Bonds, or reduce the percentage of the principal amount of Bonds, the consent of which is required for the authorization of any such modification or alteration, or which would modify, without the written consent of the Trus- tee, the rights or obligations of the Trustee. The Company has reserved the right to amend the Indenture without any consent or other action by holders of any Series of Bonds created after July 15, 1992, including the First Mortgage Bonds, 6 1/2% Series -13- due 2006, to make such amendments to the Indenture as shall be necessary in order to amend or delete in its entirety the main- tenance covenant contained therein. As provided in the Inden- ture, said Bonds are issuable in series which may vary as in the Indenture provided or permitted. This Bond is one of a series of Bonds entitled "First Mortgage Bonds, 6 1/2% Series due 2006". This Bond is not subject to redemption prior to maturity. If an Event of Default, as defined in the Indenture, shall occur, the principal of this Bond may become or be declared due and payable, in the manner and with the effect provided in the Indenture. This Bond is transferable by the registered owner hereof in person or by attorney authorized in writing, at the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), upon surrender for cancellation of this Bond and on payment of the charges and subject to the terms and conditions set forth in the Indenture, and upon any such transfer a new bond of the same series, for the same aggregate principal amount, dated March 8, 1996 if authenti- cated and delivered prior to September 1, 1996, and dated as provided in Section 2.05 of the Original Indenture if authenti- cated and delivered on or after September 1, 1996 will be issued to the transferee in exchange herefor. First Mortgage Bonds, 6 1/2% Series due 2006, are issuable as registered Bonds without coupons of the denominations of $1,000 and any integral multiple of $1,000 which may be executed by the Company and delivered to the Trustee for authentication and delivery. All Bonds of said Series, upon surrender to the Trustee at its principal corporate trust office in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), are exchangeable for other Bonds of the same series (dated March 8, 1996, in the case of an exchange prior to September 1, 1996, and dated as provided in Section 2.05 of the Original Indenture in case of an exchange on or after September 1, 1996) in such authorized denomination or denominations in the same aggregate principal amount, as may be requested by the holder surrender- ing the same. The Company and the Trustee and any paying agent may deem and treat the person in whose name this Bond is regis- tered as the absolute owner hereof, for the purpose of receiv- ing payment of or on account of the principal hereof and inter- est due hereon, and neither the Company nor the Trustee nor any -14- paying agent shall be affected by any notice to the contrary. No recourse under or upon any obligation, covenant or agreement contained in this Bond or in the Indenture or any indenture supplemental thereto or under or upon any indebtedness secured by or arising out of the Indenture or any indenture supplemen- tal thereto shall be had against any incorporator, stockholder, director or officer, as such, past, present or future, of the Company or of any predecessor or successor corporation, either directly or through the Company or such predecessor or succes- sor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or pen- alty or by any legal or equitable proceeding or otherwise how- soever; all such liability being, by the acceptance hereof and as a part of the consideration for the issuance hereof, expressly waived and released by every holder hereof, and being likewise released by the terms of the Indenture. Whenever the beneficial ownership of this Bond is determined by a book-entry system at a securities depository for the Bonds, the foregoing requirements of holding, deliver- ing or transferring this Bond shall be modified to require the appropriate person or entity to meet the requirements of the securities depository as to registering or transferring of its position in the book-entry system to produce the same effect. SECTION 1.03. Bonds of the New Series are not redeemable prior to maturity. ARTICLE TWO MISCELLANEOUS PROVISIONS Section 2.01. All the provisions, terms and condi- tions of the Original Indenture, as heretofore supplemented and amended by the Supplemental Indentures, shall continue in full force and effect. All terms defined in the Original Indenture, as heretofore supplemented, shall, for all purposes of this Supplemental Indenture, have the meaning specified in the Original Indenture, as heretofore supplemented, unless the text otherwise indicates. Section 2.02. (a) The Company covenants that so long as any Bonds of the New Series shall remain outstanding it will comply with the covenants contained in Sections 9.06 and 9.15 of the Original Indenture to the same extent as if the clause "so long as any of the Bonds of 2 7/8% Series due 1971 shall be outstanding" in each instance where it or a similar -15- clause appears in such Sections were replaced by the clause "so long as any of the Bonds of 2 7/8% Series due 1971 or any of the Bonds of 6 1/2% Series due 2006 shall be outstanding". (b) The Company reserves the right, subject to appropriate corporate action, but without any consent or other action by holders of Bonds of any series created after July 15, 1992, including the Bonds of the New Series, to make such amendments to the Original Indenture, and to the Original Indenture as supplemented, as shall be necessary in order to amend or delete in its entirety paragraph (a) of this Section 2.02 and/or Section 9.06 of the Original Indenture. Section 2.03. To the extent authorized, permitted or necessary under applicable law, this Supplemental Indenture shall also be considered to be a security agreement and financ- ing statement under the Uniform Commercial Code as adopted or hereafter adopted in one or more of the states in which any part of such properties, as aforesaid, are situated. The mail- ing address of Southwestern Public Service Company (the Debtor) is: Tyler at Sixth, Amarillo, Texas 79101. The mailing address of Chemical Bank, as Trustee (the Secured Party) is: 450 West 33rd Street, 15th Floor, New York, N.Y. 10001, Atten- tion: Corporate Trust Administration. Section 2.04. This Supplemental Indenture may be executed in several counterparts, all or any of which may be treated for all purposes as one original, and shall constitute and be one and the same instrument. Section 2.05. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture, or the due execu- tion hereof by the Company, or for or in respect of the recit- als contained herein, all of which recitals are made by the Company solely. This Supplemental Indenture has been dated March 1, 1996, solely for convenience, but has in fact been executed by the parties hereto on the dates indicated by their respective acknowledgements. IN WITNESS WHEREOF, SOUTHWESTERN PUBLIC SERVICE COM- PANY, party hereto of the first part, has caused this Supple- mental Indenture to be executed on its behalf and its corporate seal to be hereto affixed and to be attested, and CHEMICAL BANK, party hereto of the second part, in evidence of its acceptance of the trust hereby created, has caused this Supple- mental Indenture to be executed on its behalf and its corporate seal to be hereto affixed and to be attested, all as of the day and year first above written. SOUTHWESTERN PUBLIC SERVICE COMPANY, Attest: /s/ Mary Pullum /s/ Bill D. Helton ----------------------------- ------------------------------ Name: Mary Pullum Name: Bill D. Helton Title: Assistant Secretary Title: Chairman of the Board Signed, sealed and delivered by [CORPORATE SEAL] SOUTHWESTERN PUBLIC SERVICE COMPANY, in the presence of: _______________________ _______________________ CHEMICAL BANK, /s/ Josiane De Sousa ---------------------------- Name: Josiane De Sousa Title: Assistant Vice President Attest: /s/ Wanda Eiland ------------------------- Name: Wanda Eiland Title: Trust Officer Signed, sealed and delivered by [CORPORATE SEAL] CHEMICAL BANK, in the presence of: _______________________ _______________________ STATE OF TEXAS ) : ss.: COUNTY OF POTTER ) The foregoing instrument was acknowledged before me this 1st day of March, 1996, by Bill D. Helton, Chairman of the Board of SOUTHWESTERN PUBLIC SERVICE COMPANY, a New Mexico cor- poration, on behalf of said corporation. (NOTARIAL SEAL) /s/ Patricia L. Belcher -------------------------------- Notary Public, State of Texas My Commission Expires 2-8-2000 STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) The foregoing instrument was acknowledged before me this 1st day of March, 1996, by Josiane De Sousa, an Assistant Vice President of CHEMICAL BANK, a New York corporation, on behalf of said corporation acting in its capacity as trustee under the Southwestern Public Service Company Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supple- mented and amended. (NOTARIAL SEAL) /s/ Emily Fayan ------------------------------------ Notary Public, State of New York No. 24-4737006 Qualified in Kings County Certificate filed in New York County Term Expires December 31, 1997 STATE OF TEXAS ) : ss.: COUNTY OF POTTER ) BEFORE ME, the undersigned authority, on this day personally appeared Mary Pullum, who, having been by me first duly sworn, upon oath says: That she is Assistant Secretary of Southwestern Pub- lic Service Company which executed the foregoing instrument, as Party of the First Part, and that Southwestern Public Service Company is a corporation engaged in the States of Texas, New Mexico and Oklahoma in the generation, manufacture, transmis- sion, distribution and sale of electric energy and power to the public for domestic, commercial, industrial and other uses, and is one of the corporations referred to in the Business and Com- merce Code of Texas, Title 4, Chapter 35 and in Chapter 62, Article 13 Section 5 Paragraph A of New Mexico Statutes Anno- tated (Laws 1961, ch. 76, Sec. 1, Laws 1973, ch. 253, Sec. 1) and in 46 Okl. St. Ann., Section 17 (Laws 1963, ch. 359, Sec. 1, Laws 1984, ch. 229, Sec. 14). The foregoing instrument is a Supplemental Indenture supplemental to an Indenture of Mortgage and Deed of Trust from Southwestern Public Service Company to Chemical Bank (successor by merger to The New York Trust Company and Chemical Bank New York Trust Company), as Trustee, dated August 1, 1946, which contains after-acquired property provisions, and supplements thereto dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, February 1, 1956, October 1, 1959, Febru- ary 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965, February 1, 1967, October 1, 1970, May 1, 1971, Octo- ber 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two supplements thereto dated October 1, 1981, July 1, 1982, two supplements thereto dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two sup- plements thereto dated July 15, 1992, two supplements thereto dated December 1, 1992, February 15, 1995, and March 1, 1996 each of which contains after-acquired property provisions. Dated this 1st day of March, 1996. /s/ Mary Pullum --------------------------------- Name: Mary Pullum Subscribed and sworn to before me by Mary Pullum on this 1st day of March, 1996. (NOTARIAL SEAL) /s/ Patricia L. Belcher ----------------------------------- Notary Public State of Texas My Commission Expires 2-8-2000 EXHIBIT A [INSERT DESCRIPTION OF PROPERTY TO BE PLEDGED] EX-4.D 6 FORM OF SUPPLEMENTAL INDENTURE Exhibit 4(D) _______________________________________________________________ _______________________________________________________________ SOUTHWESTERN PUBLIC SERVICE COMPANY TO CHEMICAL BANK (Successor by Merger to The New York Trust Company and Chemical Bank New York Trust Company), As Trustee _____________________ SUPPLEMENTAL INDENTURE DATED , SUPPLEMENTAL TO INDENTURE OF MORTGAGE AND DEED OF TRUST, DATED AUGUST 1, 1946 THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY _____________________ RELATES TO FIRST MORTGAGE BONDS, ___% SERIES DUE ____ _______________________________________________________________ _______________________________________________________________ THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS SUPPLEMENTAL INDENTURE, dated the day of , , between SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation organized and existing under the laws of the State of New Mexico (hereinafter called the "Company"), party of the first part, and CHEMICAL BANK (successor by merger to The New York Trust Company and Chemical Bank New York Trust Company), a corporation organized and existing under the laws of the State of New York, as Trustee under the Indenture here- inafter mentioned (hereinafter called the "Trustee"), party of the second part. WHEREAS, the Company executed and delivered to The New York Trust Company, as Trustee, an Indenture of Mortgage and Deed of Trust dated August 1, 1946 (hereinafter called the "Original Indenture") and executed and delivered to The New York Trust Company or to Chemical Bank New York Trust Company or to Chemical Bank, as Trustee, supplemental indentures dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, February 1, 1956, October 1, 1959, February 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965, February 1, 1967, October 1, 1970, May 1, 1971, October 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two supplemental indentures dated October 1, 1981, July 1, 1982, two supplemental indentures dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two supplemental indentures dated July 15, 1992, two sup- plemental indentures dated December 1, 1992, and supplemental indentures dated February 15, 1995, March 1, 1996 [(1) and (2)] (hereinafter called the "Supplemental Indentures"), to secure authorized issues of First Mortgage Bonds (hereinafter called the "Bonds") of the Company; and WHEREAS, on September 8, 1959, The New York Trust Company was merged under the Banking Law of New York into Chemical Corn Exchange Bank under the name of Chemical Bank New -2- York Trust Company and on February 17, 1969, Chemical Bank New York Trust Company was merged under the Banking Law of New York into Chemical Bank under the name of Chemical Bank, which is now the Trustee under the Original Indenture and Supplemental Indentures; and WHEREAS, First Mortgage Bonds of the following Series were duly issued under and in accordance with the terms of the Original Indenture and the Supplemental Indentures and as of the date of this Supplemental Indenture are outstanding in the aggregate principal amounts set opposite the designations of the Series: Principal Amounts Series Outstanding ------ ----------------- 5.70% Series due 1997 ............... $ 15,000,000 6.875% Series due 1999 .............. $ 90,000,000 13 1/2% Series due 2001 ............. $ 25,000,000 6 1/2% Series due 2004 .............. $ 25,000,000 7 1/4% Series due 2004 .............. $135,000,000 6 5/8% Series due 2009 .............. $ 32,300,000 8.20% Series due 2022 ............... $100,000,000 8 1/4% Series due 2022 .............. $ 40,000,000 8 1/2% Series due 2025 .............. $ 70,000,000 6 1/2% Series due 2006 .............. $ 60,000,000 (3) and WHEREAS, as permitted by the Original Indenture, the Company by resolutions of its Board of Directors duly adopted has determined to create a new series of Bonds to be known as First Mortgage Bonds, (4)% Series due (5) (hereinafter called "Bonds of the New Series" or "Bonds of Series due (5)") in the form and having the characteristics set forth in this Supple- mental Indenture; and [WHEREAS, the Company has paid, redeemed or otherwise retired and heretofore delivered to the Trustee certain Bonds not heretofore made the basis of the issuance of additional Bonds under Article 6 of the Original Indenture as heretofore supplemented and it desires to issue Bonds of Series due (5) against such retired Bonds; and] WHEREAS, the Company has purchased, constructed or otherwise acquired subsequent to the execution and delivery of -3- the Original Indenture certain Property Additions not hereto- fore specifically mortgaged and pledged under the Original Indenture as heretofore supplemented and it desires by the inclusion of the descriptions thereof in this Supplemental Indenture to specifically mortgage and pledge such property; and WHEREAS, the Company, in the exercise of the powers and authority conferred upon and reserved to it under and by virtue of the provisions of the Original Indenture, as hereto- fore supplemented, and particularly the provisions contained in Articles Two and Eighteen thereof, and pursuant to appropriate resolutions of its Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a Sup- plemental Indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been done, per- formed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized, and this Supplemen- tal Indenture has been authorized by resolution duly adopted by a vote of a majority of the entire Board of Directors of the Company; NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in consideration of the premises and of one dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and of other good and valuable consideration, in order to better secure the payment both of the principal of and interest on all Bonds issued under the Original Indenture and the Supplemental Indentures and that may be issued under this or any other indenture supplemental to the Original Indenture, according to their tenor and effect, and the performance by the Company of all the covenants and conditions therein and herein contained, and in order to establish the terms of the Bonds of the New Series, hereby further covenants and agrees to and with the Trustee and its successors in the trust under the Original Indenture for the benefit of all those who shall from time to time hold the Bonds and interest coupons, if any, pertaining thereto, as herein set forth, and does hereby ratify and con- firm its mortgage and pledge to the Trustee of all property described in the Original Indenture and the Supplemental Inden- tures and does by these presents grant, bargain, sell, warrant, alien, remise, release, convey, confirm, assign, transfer, -4- mortgage, pledge, and set over unto the Trustee and to its suc- cessors and assigns forever the described property set forth in Exhibit A hereto (which shall for all purposes be treated as being set forth in full herein) constituting property acquired by the Company since the execution and delivery of the Original Indenture, and not heretofore specifically mortgaged and pledged under the Original Indenture as heretofore supplemented. TOGETHER with all buildings, improvements, plants, stations and substations located on the property referred to in Exhibit A hereto (in the case of those located on leased prop- erty, all of the Company's interest therein) or upon any other property or rights of way now or hereafter owned by the Com- pany, together with all easements, rights of way, permits, privileges, towers, poles, machinery, transformers, insulators, equipment, appliances, appurtenances, and all other property, real or personal, of the Company forming a part of, or pertain- ing to, or used, occupied or enjoyed by the Company in connec- tion with, said improvements and miscellaneous property. Also all other property, real, personal and mixed, which the Company now owns and which the Company may hereafter acquire. TOGETHER with, all and singular, the tenements, here- ditaments and appurtenances belonging or in anywise apper- taining to said property or any part thereof with the reversion and reversions, remainder and remainders, tolls, rents, reve- nues, issues, earnings, income, products and profits thereof, and all the estate, right, title and interest and claim whatso- ever, at law as well as in equity, which the Company now has or may hereafter acquire in and to said property, rights and fran- chises, and every part and parcel thereof; EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from this Supplemental Indenture and from the lien and operation hereof: (a) any and all property of the character expressly excepted and excluded from the Original Indenture as here- tofore supplemented and from the lien and operation thereof, referred to therein as Excepted Property; and (b) all property which has been released by the Trustee or otherwise disposed of by the Company free from the lien of the Original Indenture, as heretofore supple- mented, in accordance with the provisions thereof; -5- TO HAVE AND TO HOLD all such properties, real, per- sonal and mixed, mortgaged, pledged or conveyed by the Company as aforesaid, or intended so to be, unto the Trustee and its successors and assigns forever; SUBJECT HOWEVER, to the exceptions hereinabove recited, and to Permitted Encumbrances as defined in Section 4.01 of the Original Indenture, and liens existing on any prop- erty hereafter acquired by the Company at the time of such acquisition and permitted by Section 9.15 of the Original Indenture, Section 3.02 of the Supplemental Indenture dated February 1, 1967 and Section 2.02 of the Supplemental Inden- tures dated March 1, 1979, October 1, 1981 and the two Supple- mental Indentures dated July 15, 1992, the two Supplemental Indentures dated December 1, 1992, the Supplemental Indentures dated February 15, 1995, March 1, 1996 [and (1)] and of this Supplemental Indenture; IN TRUST, NEVERTHELESS, for the purposes and upon the trusts, terms and conditions, and subject to and with the pro- visos and covenants set forth in the Original Indenture, the Supplemental Indentures and this Supplemental Indenture with the same effect in all respects as if the property and rights herein described and herein conveyed to the Trustee had at the time of the execution and delivery of the Original Indenture been owned by the Company and had been specifically and at length described in and conveyed to the Trustee by the Original Indenture as a part of the property therein stated to be con- veyed and as if this Supplemental Indenture had been executed and delivered at the time of the execution and delivery of the Original Indenture. ARTICLE ONE BONDS OF THE NEW SERIES Section 1.01. There is hereby created a series of Bonds, known as and entitled "First Mortgage Bonds, (4)% Series due (5)," and the form thereof shall be as provided in this Supplemental Indenture. The aggregate principal amount of Bonds of the New Series which may be authenticated and delivered and outstanding under the Original Indenture and this Supplemental Indenture shall be unlimited except as provided in Articles Two, Three, Four, Five and Six of the Original Indenture, as amended by the Supplemental Indenture dated February 9, 1977. Bonds of the -6- New Series shall bear interest at the rate of (4)% per annum until the principal thereof becomes due and payable and there- after, if default be made in the payment of such principal, at the rate of 6% per annum until the principal thereof shall be paid and shall mature (5). Bonds of the New Series shall be registered Bonds in book-entry or definitive form without coupons of the denomina- tions of $1,000 and any integral multiple of $1,000 which may be executed by the Company and delivered to the Trustee for authentication and delivery. Bonds of the New Series[, if authenticated and delivered prior to (6), shall be dated (7), and, if authenticated and delivered on or after (6),] shall be dated as provided in Section 2.05 of the Original Indenture. Bonds of the New Series shall bear interest from their respec- tive dates, such interest to be payable on (6) and semi-annu- ally thereafter on the first day of (8) and (9) in each year. The principal of and interest on the Bonds of the New Series shall be payable at the principal corporate trust office of the Trustee or its successor in trust under the Indenture, in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts. Notwithstanding any- thing in the Original Indenture or this Supplemental Indenture to the contrary, so long as the Bonds are in a book-entry only system, payment of principal of and interest on the Bonds of the New Series will be in accordance with arrangements with The Depository Trust Company, New York, New York and its successors and assigns ("DTC"). Bonds of the New Series shall be subject to redemption as provided in Section 1.03 of this Supplemental Indenture. Definitive Bonds of the New Series may be issued in the form of engraved Bonds or Bonds lithographed or printed with steel engraved borders, and the signature of the Chairman of the Board, the President or a Vice-President and of the Sec- retary or an Assistant Secretary of the Company may be fac- simile. Subject to the foregoing provisions of this Section, definitive Bonds of the New Series, upon surrender to the Trus- tee at its principal corporate trust office, shall be exchange- able for other Bonds of the same series [(dated (7), in the case of an exchange prior to (6)] and dated as provided in Section 2.05 of the Original Indenture in case of an exchange on or after (6))] in such authorized denomination or denomina- tions in the same aggregate principal amount, as may be -7- requested by the holder surrendering the same. No charge for any such exchange shall be made except for taxes or governmen- tal charges. The Company will execute, and the Trustee shall authenticate and deliver, Bonds whenever the same shall be required for any such exchange. [If the Bonds of the New Series are to be issued in book-entry form only, notwithstanding any provision of the Original Indenture or this Supplemental Indenture to the con- trary, unless the Company shall otherwise direct (which direc- tion shall promptly be given at the written request of the Com- pany), all Bonds of the New Series issued hereunder shall be registered in the name of Cede & Co., as nominee of DTC, as registered owner of the Bonds of the New Series, and held in the custody of DTC. Unless otherwise requested by DTC, a sin- gle certificate will be issued and delivered to DTC. Benefi- cial owners of Bonds of the New Series will not receive physi- cal delivery of Bond certificates except as provided herein- after. For so long as DTC shall continue to serve as securi- ties depository for the Bonds of the New Series as provided herein, all transfers of beneficial ownership interests will be made by book-entry only, and no investor or other party pur- chasing, selling or otherwise transferring beneficial ownership of Bonds of the New Series is to receive, hold or deliver any Bond certificate. With respect to Bonds of the New Series registered in the name of Cede & Co., as nominee of DTC, the Trustee and the Company shall have no responsibility or obligation to the secu- rities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created to hold securities to facilitate the clearance and settlement of securities transactions among DTC Partici- pants ("DTC Participants") or to any person on whose behalf a DTC Participant holds an interest in the Bonds of the New Series. Without limiting the immediately preceding sentence, the Trustee and the Company shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any own- ership interest in the Bonds of the New Series, (ii) the deliv- ery to any DTC Participant or any other person, other than a registered owner of the Bonds of the New Series, as shown on the registration books, of any notice with respect to the Bonds of the New Series, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of the Bonds of the New Series, as shown in the registration books, of any amount with respect to -8- principal of or premium, if any, or interest on the Bonds of the New Series. If the Bonds of the New Series are to be issued in book-entry form only, replacement Bonds may be issued directly to beneficial owners of Bonds of the New Series other than DTC, or its nominee, but only in the event that (i) DTC determines not to continue to act as securities depository for the Bonds of the New Series (which determination shall become effective by the giving of reasonable notice to the Company or the Trus- tee); or (ii) the Company has advised DTC of its determination (which determination is conclusive as to DTC and beneficial owners of the Bonds of the New Series) to terminate the ser- vices of DTC as securities depository for the Bonds of the New Series; or (iii) the Company has determined (which determina- tion is conclusive as to DTC and the beneficial owners of the Bonds of the New Series) that the interests of the beneficial owners of the Bonds of the New Series might be adversely affected if such book-entry only system of transfer is contin- ued. Upon occurrence of the event set forth in (i) above, the Company shall use its best efforts to attempt to locate another qualified securities depository. If the Company fails to locate another qualified securities depository to replace DTC, the Company shall direct the Trustee to cause to be authenti- cated and delivered replacement Bonds of the New Series, in certificate form, to the beneficial owners of the Bonds of the New Series. In the event that the Company makes the determina- tion noted in (ii) or (iii) above (provided that the Company undertakes no obligation to make any investigation to determine the occurrence of any events that would permit the Company to make any such determination), and has made provisions to notify the beneficial owners of Bonds of the New Series of such deter- mination by mailing an appropriate notice to DTC, the Company shall cause to be issued replacement Bonds of the New Series in certificate form to beneficial owners of the Bonds of the New Series as shown on the records of DTC provided to the Trustee and the Company. Whenever, during the term of the Bonds of the New Series, the beneficial ownership thereof is determined by a book-entry system at DTC, the requirements in the Original Indenture or this Supplemental Indenture of holding, delivering or transferring Bonds or selection of Bonds to be redeemed shall be deemed modified to require the appropriate person or entity to meet the requirements of DTC as to registering or transferring of its position in the book-entry system to pro- duce the same effect. -9- If the Bonds of the New Series are to be issued in book-entry form only, notwithstanding any provision of the Original Indenture or this Supplemental Indenture to the con- trary, all Bonds of the New Series issued hereunder, if DTC so requires, shall bear a legend substantially to the following effect: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company or its agent for reg- istration of transfer, exchange, or payment, and any cer- tificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized repre- sentative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized rep- resentative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. If the Bonds of the New Series are to be issued in book-entry form only, the Company and the Trustee shall enter into a letter of representations with DTC to implement the book-entry only system of Bond registration described above. If at any time DTC ceases to hold the Bonds of the New Series, all references herein to DTC shall be of no further force or effect.] Section 1.02. The text of the Bonds of the New Series and the certificate of authentication of the Trustee to be executed thereon are to be substantially in the following forms, respectively: (FORM OF FACE OF BONDS OF THE NEW SERIES) CUSIP No. _________ No. R ___________ $__________ SOUTHWESTERN PUBLIC SERVICE COMPANY First Mortgage Bond, (4)% Series Due (5) Due (10), SOUTHWESTERN PUBLIC SERVICE COMPANY (hereinafter called the "Company"), a corporation organized and existing under the laws of the State of New Mexico, for value received, -10- hereby promises to pay to or registered assigns, on the (11) day of (12), (13) DOLLARS in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest thereon from the date hereof, at the rate of (4) percent per annum, payable in like coin or currency semi-annually on (8) and (9) in each year, commencing (6) until the principal hereof shall have become due and payable, and thereafter if default be made in the payment of such principal, at the rate of six percent per annum, until the principal hereof shall be paid. The principal of and interest on this Bond are pay- able at the principal corporate trust office of Chemical Bank or its successor in trust under the Indenture (as hereinafter defined), in the Borough of Manhattan, the City of New York (unless the Company shall designate and maintain some other office or agency for such purpose). [Notwithstanding anything in the Indenture of Mortgage and Deed of Trust dated August 1, 1946 (hereinafter called the "Original Indenture") or the Sup- plemental Indenture dated to the contrary, so long as the Bonds are in a book-entry only system, payment of principal of and interest on this Bond will be in accordance with arrangements with The Depository Trust Company, New York, New York and its successors and assigns ("DTC").] The provisions of this Bond are continued on the reverse hereof and such continued provisions shall for all pur- poses have the same effect as though fully set forth at this place. This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been duly executed by Chemical Bank, as Trustee, or its successor, as Trustee, under the Indenture. -11- IN WITNESS WHEREOF, the Company has caused this Bond to be signed in its name by the manual or facsimile signature of its Chairman of the Board, its President or a Vice-President and its corporate seal to be impressed or imprinted hereon and attested by the manual or facsimile signature of its Secretary or an Assistant Secretary. Dated SOUTHWESTERN PUBLIC SERVICE COMPANY, By President Attest: Secretary -12- (FORM OF TRUSTEE'S CERTIFICATE FOR BONDS OF THE NEW SERIES) This is one of the Bonds described in the within mentioned Indenture, CHEMICAL BANK As Trustee By Authorized Officer (FORM OF REVERSE OF BONDS OF THE NEW SERIES) This Bond is one of an authorized issue of Bonds of the Company known as its "First Mortgage Bonds," issued and to be issued in one or more series under, and all equally and rat- ably secured (except as any sinking, amortization improvement, renewal or other analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the Bonds of any particular series) by, the Original Indenture, as supplemented (a) by Sup- plemental Indentures dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, and February 1, 1956, executed by the Company to The New York Trust Company, as Trus- tee, (b) by Supplemental Indentures dated October 1, 1959, February 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965 and February 1, 1967, from the Company to Chemical Bank New York Trust Company, as Trustee, and (c) by Supplemental Indentures dated October 1, 1970, May 1, 1971, October 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two Supplemental Indentures dated October 1, 1981, July 1, 1982, two Supplemental Indentures dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two Supplemental Indentures dated July 15, 1992, two Sup- plemental Indentures dated December 1, 1992 and Supplemental Indentures dated February 15, 1995, March 1, 1996 [(1) and (2)] from the Company to Chemical Bank (hereinafter called the "Trustee"), successor by merger to The New York Trust Company and Chemical Bank New York Trust Company, as Trustee (said Mortgage and Deed of Trust as so supplemented being hereinafter collectively called the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made -13- for a description of the properties mortgaged and pledged, the nature and extent of the security, the rights of the holders of said Bonds and the coupons appurtenant to coupon Bonds and of the Trustee and of the Company in respect of such security, and the terms and conditions upon which said Bonds are and are to be secured. To the extent permitted by the Indenture and as provided therein, with the consent of the Company and upon the written consent or affirmative vote of the holders of at least sixty-six and two-thirds percent in principal amount of the Bonds then outstanding and entitled to consent, and of the holders of not less than sixty-six and two-thirds percent in principal amount of the Bonds then outstanding and entitled to consent of each series affected thereby in case one or more but less than all of the series of Bonds issued under the Indenture are so affected, the rights and obligations of the Company and of the holders of Bonds and coupons appurtenant to coupon Bonds, and the terms and provisions of the Indenture and of any instrument supplemental thereto may be modified from time to time, provided that no such modification or alteration shall be made which will affect the terms of payment of the principal of, or interest or premium on, the Bonds, or reduce the per- centage of the principal amount of Bonds, the consent of which is required for the authorization of any such modification or alteration, or which would modify, without the written consent of the Trustee, the rights or obligations of the Trustee. The Company has reserved the right to amend the Indenture without any consent or any other action by holders of any Series of Bonds created after July 15, 1992, including the First Mortgage Bonds, (4)% Series due (5), to make such amendments to the Indenture as shall be necessary in order to amend or delete in its entirety the maintenance covenant contained therein. As provided in the Indenture, said Bonds are issuable in series which may vary as in the Indenture provided or permitted. This Bond is one of a series of Bonds entitled "First Mortgage Bonds (4)% Series due (5)". [(16)] This Bond is subject to redemption at any time upon at least thirty (30) days' and not more than fifty (50) days' notice given as provided in the Indenture, at the option of the Company at the following redemption prices, expressed in percentages of principal amount: If redeemed If redeemed during 12 Redemption during 12 Redemption months ending Prices months ending Prices - ------------- ---------- ------------- ---------- (14) (14) (14) (14) -14- together, in each case, with accrued and unpaid interest on the principal amount thereof up to but not including the date fixed for redemption,[ provided, however, that this Bond may not be so redeemed at the option of the Company prior to , directly or indirectly from or in anticipation of moneys bor- rowed by or for the account of the Company at an interest cost (calculated in accordance with generally accepted financial practice and before deducting commissions and expenses) of less than (15)% per annum.] [This Bond is subject to redemption at any time out of proceeds received by the Trustee by reason of the taking of any property subject to the Indenture by the power of eminent domain or by lawful governmental authority, upon the notice hereinabove mentioned, all as more fully pro- vided in the Indenture, at the special redemption price of 100% of its principal amount, together with accrued and unpaid interest thereon to the date fixed for redemption.] If an Event of Default, as defined in the Indenture, shall occur, the principal of this Bond may become or be declared due and payable, in the manner and with the effect provided in the Indenture. This Bond is transferable by the registered owner hereof in person or by attorney authorized in writing, at the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), upon surrender for cancellation of this Bond and on payment of the charges and subject to the terms and conditions set forth in the Indenture, and upon any such transfer a new bond of the same series, for the same aggregate principal amount, [dated (7) if authenticated and delivered prior to (6), and dated as provided in Section 2.05 of the Original Indenture if authenticated and delivered on or after (6)] will be issued to the transferee in exchange herefor. First Mortgage Bonds, (4)% Series due (5), are issu- able as registered Bonds without coupons of the denominations of $1,000 and any integral multiple of $1,000 which may be exe- cuted by the Company and delivered to the Trustee for authenti- cation and delivery. All Bonds of said Series, upon surrender to the Trustee at its principal corporate trust office in the Borough of Manhattan, The City of New York (unless the Company shall designate and maintain some other office or agency for such purpose), are exchangeable for other Bonds of the same series [(dated (7), in the case of an exchange prior to (6), and dated as provided in Section 2.05 of the Original Indenture in case of an exchange on or after (6))] in such authorized denomination or denominations in the same aggregate principal amount, as may be requested by the holder surrendering the -15- same. The Company and the Trustee and any paying agent may deem and treat the person in whose name this Bond is registered as the absolute owner hereof, for the purpose of receiving pay- ment of or on account of the principal hereof and interest due hereon, and neither the Company nor the Trustee nor any paying agent shall be affected by any notice to the contrary. No recourse under or upon any obligation, covenant or agreement contained in this Bond or in the Indenture or any indenture supplemental thereto or under or upon any indebtedness secured by or arising out of the Indenture or any indenture supplemen- tal thereto shall be had against any incorporator, stockholder, director or officer, as such, past, present or future, of the Company or of any predecessor or successor corporation, either directly or through the Company or such predecessor or succes- sor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or pen- alty or by any legal or equitable proceeding or otherwise how- soever; all such liability being, by the acceptance hereof and as a part of the consideration for the issuance hereof, expressly waived and released by every holder hereof, and being likewise released by the terms of the Indenture. [Whenever the beneficial ownership of this Bond is determined by a book-entry system at a securities depository for the Bonds, the foregoing requirements of holding, deliver- ing or transferring this Bond shall be modified to require the appropriate person or entity to meet the requirements of the securities depository as to registering or transferring of its position in the book-entry system to produce the same effect.] SECTION 1.03. (16) Bonds of the New Series shall be redeemable (exept as otherwise provided in Section 8.05 of the Original Indenture, as amended by Section 3.01 of the Supple- mental Indenture dated February 1, 1949) at the option of the Company, at any time and from time to time [on or after __________], in whole or in part, in the manner, with the effect and upon the notice provided in Article Eleven of the Original Indenture at the general redemption prices set forth in Section 1.02 of this Supplemental Indenture, together, in each case, with accrued and unpaid interest on the principal amount thereof up to but not including the date fixed for redemption,[ provided, however, that Bonds of the New Series may not be so redeemed at the option of the Company prior to (15), directly or indirectly from or in anticipation of moneys borrowed by or for the account of the Company at an interest cost (calculated in accordance with generally accepted finan- cial practice and before deducting commissions and expenses) of -16- less than (15)% per annum.] [The redemption price for Bonds of the New Series which are to be redeemed by the use of Trust Monies which are the proceeds of the taking of any part of the Trust Estate through exercise of the power of eminent domain or by the exercise of any State, municipality or other governmen- tal authority of any right which it may have to purchase any part of the Trust Estate, as provided in Section 8.05 of the Original Indenture, as amended by Section 3.01 of the Supple- mental Indenture dated February 1, 1949, shall be 100% together with accrued and unpaid interest on the principal amount thereof up to but not including the date fixed for redemption.] ARTICLE TWO MISCELLANEOUS PROVISIONS Section 2.01. All the provisions, terms and condi- tions of the Original Indenture, as heretofore supplemented and amended by the Supplemental Indentures, shall continue in full force and effect. All terms defined in the Original Indenture, as heretofore supplemented, shall, for all purposes of this Supplemental Indenture, have the meaning specified in the Original Indenture, as heretofore supplemented, unless the text otherwise indicates. Section 2.02. (a) The Company covenants that so long as any Bonds of the New Series shall remain outstanding it will comply with the covenants contained in Sections 9.06 and 9.15 of the Original Indenture to the same extent as if the clause "so long as any of the Bonds of 2 7/8% Series due 1971 shall be outstanding" in each instance where it or a similar clause appears in such Sections were replaced by the clause "so long as any of the Bonds of 2 7/8% Series due 1971 or any of the Bonds of (4)% Series due (5) shall be outstanding". (b) The Company reserves the right, subject to appropriate corporate action, but without any consent or other action by holders of Bonds of any series created after July 15, 1992, including the Bonds of the New Series, to make such amendments to the Original Indenture, and to the Original Indenture as supplemented, as shall be necessary in order to amend or delete in its entirety paragraph (a) of this Section 2.02 and/or Section 9.06 of the Original Indenture. Section 2.03. To the extent authorized, permitted or necessary under applicable law, this Supplemental Indenture shall also be considered to be a security agreement and -17- financing statement under the Uniform Commercial Code as adopted or hereafter adopted in one or more of the states in which any part of such properties, as aforesaid, are situated. The mailing address of Southwestern Public Service Company (the Debtor) is: Tyler at Sixth, Amarillo, Texas 79101. The mail- ing address of Chemical Bank, as Trustee (the Secured Party) is: 450 West 33rd Street, 15th Floor, New York, N.Y. 10001, Attention: Corporate Trustee Administration. Section 2.04. This Supplemental Indenture may be executed in several counterparts, all or any of which may be treated for all purposes as one original, and shall constitute and be one and the same instrument. Section 2.05. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture, or the due execu- tion hereof by the Company, or for or in respect of the recit- als contained herein, all of which recitals are made by the Company solely. This Supplemental Indenture has been dated (2), solely for convenience, but has in fact been executed by the parties hereto on the dates indicated by their respective acknowledgements. -18- IN WITNESS WHEREOF, SOUTHWESTERN PUBLIC SERVICE COM- PANY, party hereto of the first part, has caused this Supple- mental Indenture to be executed on its behalf and its corporate seal to be hereto affixed and to be attested, and CHEMICAL BANK, party hereto of the second part, in evidence of its acceptance of the trust hereby created, has caused this Supple- mental Indenture to be executed on its behalf and its corporate seal to be hereto affixed and to be attested, all as of the day and year first above written. SOUTHWESTERN PUBLIC SERVICE COMPANY, /s/ ------------------------------ Attest: ____________________ Name: Title: Name: Title: Signed, sealed and delivered by [CORPORATE SEAL] SOUTHWESTERN PUBLIC SERVICE COMPANY, in the presence of: /s/ ------------------------------ /s/ ------------------------------ CHEMICAL BANK, /s/ --------------------------- Name: Title: Attest: /s/ ----------------------------- Name: Title: Signed, sealed and delivered by [CORPORATE SEAL] CHEMICAL BANK, in the presence of: /s/ --------------------------------- /s/ --------------------------------- STATE OF TEXAS ) : ss.: COUNTY OF POTTER ) The foregoing instrument was acknowledged before me this day of , , by , of SOUTHWESTERN PUBLIC SERVICE COMPANY, a New Mexico corporation, on behalf of said corporation. (NOTARIAL SEAL) /s/ ------------------------------- Notary Public, State of Texas My Commission Expires [ ] STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) The foregoing instrument was acknowledged before me this day of , , by , of CHEMICAL BANK, a New York corporation, on behalf of said corporation acting in its capacity as trustee under the South- western Public Service Company Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended. (NOTARIAL SEAL) /s/ ------------------------------------ Notary Public, State of New York No. [ ] Qualified in King's County Certificate filed in New York County Term Expires [ ] STATE OF TEXAS ) : ss.: COUNTY OF POTTER ) BEFORE ME, the undersigned authority, on this day personally appeared , who, having been by me first duly sworn, upon oath says: That he is Secretary of Southwestern Public Service Company which executed the foregoing instrument, as Party of the First Part, and that Southwestern Public Service Company is a corporation engaged in the States of Texas, New Mexico and Oklahoma in the generation, manufacture, transmission, distri- bution and sale of electric energy and power to the public for domestic, commercial, industrial and other uses, and is one of the corporations referred to in the Business and Commerce Code of Texas, Title 4, Chapter 35 and in Chapter 62, Article 13 Section 5 Paragraph A of New Mexico Statutes Annotated (Laws 1961, ch. 76, Sec. 1, Laws 1973, ch. 253, Sec. 1) and in 46 Okl. St. Ann., Section 17 (Laws 1963, ch. 359, Sec. 1, Laws 1984, ch. 229, Sec. 14). The foregoing instrument is a Supplemental Indenture supplemental to an Indenture of Mortgage and Deed of Trust from Southwestern Public Service Company to Chemical Bank (successor by merger to The New York Trust Company and Chemical Bank New York Trust Company), as Trustee, dated August 1, 1946, which contains after-acquired property provisions, and supplements thereto dated December 1, 1946, November 1, 1947, January 20, 1948, February 1, 1949, December 1, 1949, February 1, 1950, January 1, 1951, January 1, 1952, February 1, 1953, February 1, 1954, June 1, 1954, February 1, 1956, October 1, 1959, Febru- ary 1, 1961, January 1, 1963, February 1, 1964, February 1, 1965, February 1, 1967, October 1, 1970, May 1, 1971, Octo- ber 1, 1972, February 1, 1975, February 1, 1976, February 9, 1977, March 1, 1977, March 1, 1978, March 1, 1979, April 1, 1979, June 1, 1980, two supplements thereto dated October 1, 1981, July 1, 1982, two supplements thereto dated April 1, 1983, February 1, 1985, April 1, 1986, June 1, 1987, two sup- plements thereto dated July 15, 1992, two supplements thereto dated December 1, 1992, February 15, 1995, March 1, 1996 [(1) and (2)], each of which contains after-acquired property provisions. Dated this day of , . /s/ ------------------------------ Name: Subscribed and sworn to before me by on this day of , . (NOTARIAL SEAL) /s/ ------------------------------- Notary Public State of Texas My Commission Expires [ ] EXHIBIT A (17) Notes to Supplemental Indenture (1) The date of any unlisted prior Supplemental Indenture to be inserted. (2) The date of this Supplemental Indenture to be inserted. (3) The designation and amount outstanding of any unlisted previously issued series of Bonds to be inserted. (4) The interest rate of the New Bonds to be inserted. (5) The date on which or the year in which the New Bonds are to mature is to be added. (6) The first interest payment date shall be inserted. (7) The original issue date shall be inserted. (8) The month in which the second semi-annual interest payment date falls shall be inserted. (9) The month in which the third semi-annual interest payment date falls shall be inserted. (10) The date on which New Bonds are to mature shall be inserted. (11) The day of month in which the New Bonds are to mature shall be inserted. (12) The month in which the New Bonds are to mature shall be inserted. (13) The year in which the New Bonds are to mature shall be inserted. (14) Any redemption price or prices shall be inserted. (15) Any limitation on refunding shall be inserted if there is one. (16) Insert appropriate language to the effect that the New Bonds are not redeemable or are not redeemable -2- prior to a specified date and modify the text, if appropriate, for the New Bonds. (17) A description of any property to be pledged shall be inserted. EX-4.E 7 FORM OF SPECIMEN CERTIFICATE - PREFERRED STOCK EXHIBIT 4(e) SPS SOUTHWESTERN PUBLIC SERVICE Number Shares SOUTHWESTERN PUBLIC SERVICE COMPANY INCORPORATED UNDER THE LAWS OF THE STATE OF NEW MEXICO CUSIP See Rerverse For Certain Definitions This Certifies that S P E C I M E N is the owner of full paid and non-assessable shares, having a par value of $1 per share, of the % PREFERRED STOCK of SOUTHWESTERN PUBLIC SERVICE COMPANY (hereinafter called the Company), transferable on the books of the Company by the holder hereof in person or by a duly authorized attorney upon surrender of this certificate properly endorsed. This certificate and the shares represented hereby are issued and shall be held subject to all the provisions of the Restated Articles of Incorporation of the Company and all amendments thereof and Certificates creating series of Preferred Stock, copies of which are on file with the Transfer Agent, to all of which the holder, by acceptance hereof, assents. This certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. WITNESS the seal of the Company and the signatures of its President and Secretary. Secretary Corporate Seal President -2- The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian -------------------- TEN ENT -- as tenants by the (Cust) (Minor) entireties under Uniform JT TEN -- as joint tenants with Gifts to Minors right of survivorship Act___________ and not as tenants in (State) common Additional abbreviations may also be used though not in the above list. SOUTHWESTERN PUBLIC SERVICE COMPANY THE COMPANY WILL FURNISH TO EACH STOCKHOLDER UPON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE COMPANY, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO FIX AND DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES OF PREFERRED STOCK. SUCH REQUEST MAY BE MADE TO THE COMPANY OR THE TRANSFER AGENT. For Value Received, _________ hereby sell, assign and transfer unto Please Insert Social Security Or Other Identifying Number Of Asssignee _____________________________ _____________________________ _________________________________________________________________ (Please Print Or Typewrite Name And Address Of Assignee) _________________________________________________________________ _________________________________________________________________ __________________________________________________________Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ________________________________________________________Attorney to transfer the said stock on the books of the within named Company with full power of substitution in the premises. Date__________________ -3- ____________________________________________ NOTICE: The Signature To This Assignment Must Correspond With The Name As Written Upon The Face Of The Certificate In Every Particular Without Alteration Or Enlargement Or Unit Change Whatever EX-4.F 8 FORM OF INDENTURE Exhibit 4(f) SOUTHWESTERN PUBLIC SERVICE COMPANY DEBT SECURITIES INDENTURE Dated as of , 1996 , Trustee PARTIAL CROSS-REFERENCE TABLE Indenture Section TIA Section 2.05 317(b) 2.06 312(a) 2.11 316(a) (last sentence) 4.05 314(a)(4) 4.06 314(a)(1) 6.03 317(a)(1) 6.04 316(a)(1)(B) 6.05 316(a)(1)(A) 6.07 317(a)(1) 7.01 315(a) 315(d) 7.04 315(b) 7.05 313(a), 313(d) 7.07 310(a), 310(b) 7.09 310(a)(2) 8.02 310(a), 310(b) 10.04 316(c) 11.01 318(a) 11.02 313(c) 11.03 314(c)(1) 314(c)(2) 11.04 314(e) -i- TABLE OF CONTENTS Article Section Heading Page 1 DEFINITIONS 1.01 Definitions ....................... 1 1.02 Other Definitions ................. 3 1.03 Rules of Construction ............. 4 2 THE SECURITIES 2.01 Issuable in Series ................ 4 2.02 Execution and Authentication....... 6 2.03 Bond Agents ....................... 7 2.04 Bearer Securities ................. 7 2.05 Paying Agent to Hold Money in Trust ........................... 8 2.06 Securityholder Lists .............. 9 2.07 Transfer and Exchange ............. 9 2.08 Replacement Securities ............ 10 2.09 Outstanding Securities ............ 10 2.10 Discounted Securities ............. 11 2.11 Treasury Securities ............... 11 2.12 Global Securities ................. 11 2.13 Temporary Securities .............. 12 2.14 Cancellation ...................... 12 2.15 Defaulted Interest ................ 12 3 REDEMPTION 3.01 Notices to Trustee ................ 13 3.02 Selection of Securities to Be Redeemed ........................ 13 3.03 Notice of Redemption .............. 13 3.04 Effect of Notice of Redemption ...................... 14 3.05 Payment of Redemption Price ....... 15 3.06 Securities Redeemed in Part ....... 15 4 COVENANTS 4.01 Certain Definitions ............... 16 4.02 Payment of Securities ............. 16 4.03 Overdue Interest .................. 16 4.04 No Lien Created, etc. ............. 16 4.05 Compliance Certificate ............ 17 4.06 SEC Reports ....................... 17 -ii- Article Section Heading Page 5 SUCCESSORS 5.01 When Company May Merge, etc. ...... 17 6 DEFAULTS AND REMEDIES 6.01 Events of Default ................. 18 6.02 Acceleration ...................... 19 6.03 Other Remedies .................... 20 6.04 Waiver of Past Defaults ........... 20 6.05 Control by Majority ............... 21 6.06 Limitation on Suits ............... 21 6.07 Collection Suit by Trustee ........ 21 6.08 Priorities ........................ 22 7 TRUSTEE 7.01 Rights of Trustee ................. 22 7.02 Individual Rights of Trustee ...... 23 7.03 Trustee's Disclaimer .............. 23 7.04 Notice of Defaults ................ 23 7.05 Reports by Trustee to Holders ..... 24 7.06 Compensation and Indemnity ........ 24 7.07 Replacement of Trustee ............ 25 7.08 Successor Trustee by Merger, etc. ............................ 26 7.09 Trustee's Capital and Surplus ..... 26 8 DISCHARGE OF INDENTURE 8.01 Defeasance ........................ 26 8.02 Conditions to Defeasance .......... 27 8.03 Application of Trust Money ........ 27 8.04 Repayment to Company .............. 27 9 CONVERSION 9.01 Conversion Privilege .............. 29 9.02 Conversion Procedure .............. 29 9.03 Taxes on Conversion ............... 30 9.04 Company Determination Final ....... 31 9.05 Trustee's and Conversion Agent's Disclaimer ............. 31 9.06 Company to Provide Conversion Securities ...................... 31 9.07 Cash Settlement Option ............ 31 9.08 Adjustment in Conversion Rate for Change in Capital Stock ..... 33 -iii- Article Section Heading Page 9.09 Adjustment in Conversion Rate for Common Stock Issued Below Market Price .............. 34 9.10 Adjustment for Other Distributions ................... 36 9.11 Voluntary Adjustment .............. 37 9.12 When Adjustment May Be Deferred ........................ 37 9.13 When No Adjustment Required ....... 38 9.14 Notice of Adjustment .............. 38 9.15 Notice of Certain Transactions .................... 38 9.16 Reorganization of the Company ..... 39 10 AMENDMENTS 10.01 Without Consent of Holders ........ 39 10.02 With Consent of Holders ........... 40 10.03 Compliance with Trust Inden- ture Act ........................ 41 10.04 Effect of Consents ................ 41 10.05 Notation on or Exchange of Securities ...................... 41 10.06 Trustee Protected ................. 42 11 MISCELLANEOUS 11.01 Trust Indenture Act ............... 42 11.02 Notices ........................... 42 11.03 Certificate and Opinion as to Conditions Precedent ............ 43 11.04 Statements Required in Cer- tificate or Opinion ............. 44 11.05 Rules by Company and Agents ....... 44 11.06 Legal Holidays .................... 44 11.07 No Recourse Against Others ........ 44 11.08 Duplicate Originals ............... 45 11.09 Governing Law ..................... 45 SIGNATURES ................................ 46 Exhibit A: Form of Registered Security ...................... Exhibit B: Form of Bearer Security ....... Notes to Exhibits A and B ................. Exhibit C: Form of Assignment ............ Exhibit D: Form of Conversion Notice ..... -iv- INDENTURE dated as of , 1996 between SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation organized and existing under the laws of the State of New Mexico (herein- after called the "Company") and , a bank- ing corporation ("Trustee"). Each party agrees as follows for the benefit of the Hold- ers of the Company's debt securities issued under this Indenture: ARTICLE 1 -- DEFINITIONS SECTION 1.01. Definitions. "Affiliate" means any person directly or indirectly con- trolling or controlled by or under direct or indirect common control with the Company. "Agent" means any Registrar, Transfer Agent or Paying Agent. "Authorized Newspaper" means a newspaper that is: (1) printed in the English language or in an offi- cial language of the country of publication; (2) customarily published on each business day in the place of publication; and (3) of general circulation in the relevant place or in the financial community of such place. Whenever successive publications in an Authorized Newspaper are required, they may be made on the same or different business days and in the same or different Authorized Newspapers. "Bearer Security" means a Security payable to bearer. "Board" means the Board of Directors of the Company or any authorized committee of the Board. "Bond Resolution" means a resolution adopted by the Board or by a committee of Officers or an Officer pursuant to Board delegation authorizing a series of Securities. "Capital Stock" means any and all shares, interests, par- ticipations or other equivalents (however designated) of capi- tal stock of any person and all warrants or options to acquire such capital stock. "Common Stock" means the common stock, per value $1.00 per share, of the Company. "Company" means the party named as such above until a suc- cessor replaces it and thereafter means the successor. "Conversion Rate" means such number or amount of shares of Common Stock or other equity or debt securities for which $1,000 aggregate principal amount of Securities of any series is convertible, initially as stated in the Bond Resolution authorizing the series and as adjusted pursuant to the terms of this Indenture and the Bond Resolution. "coupon" means an interest coupon for a Bearer Security. "Default" means any event which is, or after notice or passage of time would be, an Event of Default. "Discounted Security" means a Security where the amount of principal due upon acceleration is less than the stated princi- pal amount. "Holder" or "Securityholder" means the person in whose name a Registered Security is registered and the bearer of a Bearer Security or coupon. "Indenture" means this Indenture and any Bond Resolution as amended from time to time. "Officer" means the Chairman, any Vice-Chairman, the Pres- ident, any Executive or Senior Vice President, any Vice-Presi- dent, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company. "Officers' Certificate" means a certificate signed by two Officers of the Company. "Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee. "principal" of a debt security means the principal of the security plus the premium, if and when applicable, on the security. "Registered Security" means a Security registered as to principal and interest by the Registrar. "SEC" means the Securities and Exchange Commission. -2- "Securities" means the debt securities issued under this Indenture. "series" means a series of Securities or the Securities of the series. "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the date shown above. "Trading Day" means each day on which the securities exchange or quotation system which is used to determine the Market Price is open for trading or quotation. "Trustee" means the party named as such above until a suc- cessor replaces it and thereafter means the successor. "Trust Officer" means the Chairman of the Board, the Pres- ident or any other officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters. "United States" means the United States of America, its territories and possessions and other areas subject to its jurisdiction. SECTION 1.02. Other Definitions. Term Defined in Section "Bankruptcy Law" 6.01 "Conditional Redemption" 3.04 "Conversion Agent" 2.03 "Conversion Date" 9.02 "Conversion Notice" 9.02 "Conversion Right" 9.01 "Custodian" 6.01 "Event of Default" 6.01 "Legal Holiday" 11.06 "Lien" 4.01 "Market Price" 9.07 "Paying Agent" 2.03 "Price Per Share" 9.09 "Registrar" 2.03 "Subsidiary" 4.01 "Transfer Agent" 2.03 "Treasury Regulations" 2.04 "U.S. Government Obligations" 8.02 "Voting Stock" 4.01 "Yield to Maturity" 4.01 -3- SECTION 1.03. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with gener- ally accepted accounting principles in the United States; (3) generally accepted accounting principles are those applicable from time to time; (4) all terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings assigned to them by such definitions; (5) "or" is not exclusive; and (6) words in the singular include the plural, and in the plural include the singular. ARTICLE 2 -- THE SECURITIES SECTION 2.01. Issuable in Series. The aggregate principal amount of Securities that may be issued under this Indenture is unlimited. The Securities may be issued from time to time in one or more series. Each series shall be created by a Bond Resolution or a supplemental inden- ture that establishes the terms of the series, which may include the following: (1) the title of the series; (2) the aggregate principal amount of the series; (3) the interest rate, if any, or method of calcula- ting the interest rate; (4) the date from which interest will accrue; (5) the record dates for interest payable on Regis- tered Securities; -4- (6) the dates when principal and interest are payable; (7) the manner of paying principal and interest; (8) the places where principal and interest are payable; (9) the Registrar, Transfer Agent and Paying Agent; (10) the terms of any mandatory or optional redemp- tion by the Company including any sinking fund; (11) the terms of any redemption at the option of Holders; (12) the denominations in which Securities are issuable; (13) whether Securities will be issuable as Regis- tered Securities or Bearer Securities; (14) whether and upon what terms Registered Securi- ties and Bearer Securities may be exchanged; (15) whether any Securities will be represented by a Security in global form; (16) the terms of any global Security; (17) the terms of any tax indemnity; (18) the currencies (including any composite cur- rency) in which principal or interest may be paid; (19) if payments of principal or interest may be made in a currency other than that in which Securi- ties are denominated, the manner for determining such payments; (20) if amounts of principal or interest may be determined by reference to an index, formula or other method, the manner for determining such amounts; (21) provisions for electronic issuance of Securities or for Securities in uncertificated form; -5- (22) the portion of principal payable upon accelera- tion of a Discounted Security; (23) any Events of Default or covenants in addition to or in lieu of those set forth in this Indenture; (24) whether and upon what terms Securities may be defeased; (25) the forms of the Securities or any coupon, which may be in the form of Exhibit A or B; (26) any terms that may be required by or advisable under U.S. laws; (27) whether and upon what terms the Securities will be convertible into or exchangeable for Common Stock of the Company or other equity or debt securities, which may include the terms provided in Article 9; and (28) any other terms not inconsistent with this Indenture. All Securities of one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series. The creation and issuance of a series and the authentica- tion and delivery thereof are not subject to any conditions precedent. SECTION 2.02. Execution and Authentication. Two Officers shall sign the Securities by manual or fac- simile signature. The Company's seal shall be reproduced on the Securities. An Officer shall sign any coupons by facsimile signature. If an Officer whose signature is on a Security or its cou- pons no longer holds that office at the time the Security is authenticated or delivered, the Security and coupons shall nevertheless be valid. A Security and its coupons shall not be valid until the Security is authenticated by the manual signature of the Regis- trar. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. -6- Each Registered Security shall be dated the date of its authentication. Each Bearer Security shall be dated the date of its original issuance or as provided in the Bond Resolution. Securities may have notations, legends or endorsements required by law, stock exchange rule, agreement or usage. In the event Securities are issued in electronic or other uncertificated form, such Securities may be validly issued without the signatures or seal contemplated by this Section 2.02. SECTION 2.03. Bond Agents. The Company shall maintain an office or agency where Securities may be authenticated ("Registrar"), where Securities may be presented for registration of transfer or for exchange ("Transfer Agent"), where Securities may be presented for pay- ment ("Paying Agent") and where Securities may be presented for conversion ("Conversion Agent"). Whenever the Company must issue or deliver Securities pursuant to this Indenture, the Registrar shall authenticate the Securities at the Company's request. The Transfer Agent shall keep a register of the Secu- rities and of their transfer and exchange. The Company may appoint more than one Registrar, Transfer Agent, Paying Agent or Conversion Agent for a series. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company does not appoint or maintain a Registrar, Transfer Agent, Paying Agent or Conversion Agent for a series, the Trustee shall act as such. SECTION 2.04. Bearer Securities. U.S. laws and Treasury Regulations restrict sales or exchanges of and payments on Bearer Securities. Therefore, except as provided below: (1) Bearer Securities will be offered, sold and delivered only outside the United States and will be delivered only upon presentation of a certificate in a form prescribed by the Company to comply with U.S. laws and regulations. (2) Bearer Securities will not be issued in exchange for Registered Securities. -7- (3) All payments of principal and interest (includ- ing original issue discount) on Bearer Securi- ties will be made outside the United States by a Paying Agent located outside the United States unless the Company determines that: (A) such payments may not be made by such Pay- ing Agent because the payments are illegal or prevented by exchange controls as described in Treasury Regulation Section 1.163-5(c)(2)(v); and (B) making the payments in the United States would not have an adverse tax effect on the Company. If there is a change in the relevant provisions of U.S. laws or Treasury Regulations or the judicial or administrative interpretation thereof, a restriction set forth in paragraph (1), (2) or (3) above will not apply to a series if the Company determines that the relevant provisions no longer apply to the series or that failure to comply with the relevant provisions would not have an adverse tax effect on the Company or on Securityholders or cause the series to be treated as "registration-required" obligations under U.S. law. The Company shall notify the Trustee of any determinations by the Company under this Section. "Treasury Regulations" means regulations of the U.S. Trea- sury Department under the Internal Revenue Code of 1986, as amended. SECTION 2.05. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent for a series other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of the persons enti- tled thereto all money held by the Paying Agent for the payment of principal of or interest on the series, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money so held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for the money. -8- If the Company or an Affiliate acts as Paying Agent for a series, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent for the series. The Company may elect not to exchange or register the transfer of any Security for a period of 15 days before a selection of Securities to be redeemed. SECTION 2.06. Securityholder Lists. The Trustee shall preserve in as current a form as is rea- sonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Transfer Agent, the Company shall furnish to the Trustee semiannually and at such other times as the Trustee may request a list in such form and as of such date as the Trustee may rea- sonably require of the names and addresses of Holders of Regis- tered Securities and Holders of Bearer Securities whose names are on the list referred to below. The Transfer Agent shall keep a list of the names and addresses of Holders of Bearer Securities who file a request to be included on such list. A request will remain in effect for two years but successive requests may be made. Whenever the Company or the Trustee is required to mail a notice to all Holders of Registered Securities of a series, it also shall mail the notice to Holders of Bearer Securities of the series whose names are on the list. Whenever the Company is required to publish a notice to all Holders of Bearer Securities of a series, it also shall mail the notice to such of them whose names are on the list. SECTION 2.07. Transfer and Exchange. Where Registered Securities of a series are presented to the Transfer Agent with a request to register transfer or to exchange them for an equal principal amount of Registered Secu- rities of other denominations of the series, the Transfer Agent shall register the transfer or make the exchange if its requirements for such transactions are met. The Transfer Agent may require a Holder to pay a sum suf- ficient to cover any taxes imposed on a transfer or exchange. If a series provides for Registered and Bearer Securities and for their exchange, Bearer Securities may be exchanged for Registered Securities and Registered Securities may be -9- exchanged for Bearer Securities as provided in the Securities or the Bond Resolution if the requirements of the Transfer Agent for such transactions are met and if Section 2.04 permits the exchange. SECTION 2.08. Replacement Securities. If the Holder of a Security or coupon claims that it has been lost, destroyed or wrongfully taken, then, in the absence of notice to the Company or the Trustee that the Security or coupon has been acquired by a bona fide purchaser, the Company shall issue a replacement Security or coupon if the Company and the Trustee receive: (1) evidence satisfactory to them of the loss, destruction or taking; (2) an indemnity bond satisfactory to them; and (3) payment of a sum sufficient to cover their expenses and any taxes for replacing the Secu- rity or coupon. A replacement Security shall have coupons attached correspond- ing to those, if any, on the replaced Security. Every replacement Security or coupon is an additional obligation of the Company. SECTION 2.09. Outstanding Securities. The Securities outstanding at any time are all the Securi- ties authenticated by the Registrar except for those cancelled by it, those delivered to it for cancellation, and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser. If Securities are considered paid under Section 4.02, they cease to be outstanding and interest on them ceases to accrue. A Security does not cease to be outstanding because the Company or an Affiliate holds the Security. -10- SECTION 2.10. Discounted Securities. In determining whether the Holders of the required princi- pal amount of Securities have concurred in any direction, waiver or consent, the principal amount of a Discounted Secu- rity shall be the amount of principal that would be due as of the date of such determination if payment of the Security were accelerated on that date. SECTION 2.11. Treasury Securities. In determining whether the Holders of the required princi- pal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or an Affil- iate shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. SECTION 2.12. Global Securities. If the Bond Resolution so provides, the Company may issue some or all of the Securities of a series in temporary or per- manent global form. A global Security may be in registered form, in bearer form with or without coupons or in uncertificated form. A global Security shall represent that amount of Securities of a series as specified in the global Security or as endorsed thereon from time to time. At the Com- pany's request, the Registrar shall endorse a global Security to reflect the amount of any increase or decrease in the Secu- rities represented thereby. The Company may issue a global Security only to a deposi- tory designated by the Company. A depository may transfer a global Security only as a whole to its nominee or to a succes- sor depository. The Bond Resolution may establish, among other things, the manner of paying principal and interest on a global Security and whether and upon what terms a beneficial owner of an inter- est in a global Security may exchange such interest for defini- tive Securities. The Company, an Affiliate, the Trustee and any Agent shall not be responsible for any acts or omissions of a depository, for any depository records of beneficial ownership interests or for any transactions between the depository and beneficial owners. -11- SECTION 2.13. Temporary Securities. Until definitive Securities of a series are ready for delivery, the Company may use temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Temporary Securities may be in global form. Temporary Bearer Securities may have one or more coupons or no coupons. Without unreasonable delay, the Company shall deliver definitive Securities in exchange for temporary Securities. SECTION 2.14. Cancellation. The Company at any time may deliver Securities to the Reg- istrar for cancellation. The Transfer Agent and the Paying Agent shall forward to the Registrar any Securities and coupons surrendered to them for payment, exchange or registration of transfer. The Registrar shall cancel all Securities or coupons surrendered for payment, registration of transfer, exchange or cancellation as follows: the Registrar will cancel all Regis- tered Securities and matured coupons. The Registrar also will cancel all Bearer Securities and unmatured coupons unless the Company requests the Registrar to hold the same for redelivery. Any Bearer Securities so held shall be considered delivered for cancellation under Section 2.09. The Registrar shall destroy cancelled Securities and coupons unless the Company otherwise directs. Unless the Bond Resolution otherwise provides, the Company may not issue new Securities to replace Securities that the Company has paid or that the Company has delivered to the Reg- istrar for cancellation. SECTION 2.15. Defaulted Interest If the Company defaults in a payment of interest on Regis- tered Securities, it need not pay the defaulted interest to Holders on the regular record date. The Company may fix a spe- cial record date for determining Holders entitled to receive defaulted interest or the Company may pay defaulted interest in any other lawful manner. -12- ARTICLE 3 -- REDEMPTION SECTION 3.01. Notices to Trustee. Securities of a series that are redeemable before maturity shall be redeemable in accordance with their terms and, unless the Bond Resolution otherwise provides, in accordance with this Article. In the case of a redemption by the Company, the Company shall notify the Trustee of the redemption date and the princi- pal amount of Securities to be redeemed. The Company shall notify the Trustee at least 35 days before the redemption date unless a shorter notice is satisfactory to the Trustee. If the Company is required to redeem Securities, it may reduce the principal amount of Securities required to be redeemed to the extent it is permitted a credit by the terms of the Securities and it notifies the Trustee of the amount of the credit and the basis for it. If the reduction is based on a credit for acquired or redeemed Securities that the Company has not previously delivered to the Registrar for cancellation, the Company shall deliver the Securities at the same time as the notice. SECTION 3.02. Selection of Securities to Be Redeemed. If less than all the Securities of a series are to be redeemed, the Trustee shall select the Securities to be redeemed by a method the Trustee considers fair and appropri- ate. The Trustee shall make the selection from Securities of the series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities having denominations larger than the minimum denomination for the series. Securities and portions thereof selected for redemption shall be in amounts equal to the mini- mum denomination for the series or an integral multiple thereof. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. SECTION 3.03. Notice of Redemption. At least 30 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder of Registered Securities whose Securities are to be redeemed. -13- If Bearer Securities are to be redeemed, the Company shall publish a notice of redemption in an Authorized Newspaper as provided in the Securities. A notice shall identify the Securities of the series to be redeemed and shall state: (1) the redemption date; (2) the redemption price; (3) the name and address of the Paying Agent; (4) that Securities called for redemption, together with all coupons, if any, maturing after the redemption date, must be surrendered to the Pay- ing Agent to collect the redemption price; (5) that interest on Securities called for redemp- tion ceases to accrue on and after the redemp- tion date; and (6) whether the redemption by the Company is manda- tory or optional; and (7) whether the redemption is conditional as pro- vided in Section 3.04, the terms of the condi- tion, and that, if the condition is not satis- fied or is not waived by the Company, the Secu- rities will not be redeemed and such a failure to redeem will not constitute an Event of Default. A redemption notice given by publication need not identify Registered Securities to be redeemed. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense. SECTION 3.04. Effect of Notice of Redemption. Except as provided below, once notice of redemption is given, Securities called for redemption become due and payable on the redemption date at the redemption price stated in the notice. A notice of redemption may provide that it is subject to the occurrence of any event before the date fixed for such redemption as described in such notice ("Conditional -14- Redemption") and such notice of Conditional Redemption shall be of no effect unless all such conditions to the redemption have occurred before such date or have been waived by the Company. SECTION 3.05. Payment of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest on all Securities to be redeemed on that date. When the Holder of a Security surrenders it for redemption in accordance with the redemption notice, the Company shall pay to the Holder on the redemption date the redemption price and accrued interest to such date, except that: (1) the Company will pay any such interest (except defaulted interest) to Holders on the record date of Registered Securities if the redemption date occurs on an interest payment date; and (2) the Company will pay any such interest to Hold- ers of coupons that mature on or before the redemption date upon surrender of such coupons to the Paying Agent. Coupons maturing after the redemption date on a called Security are void absent a payment default on that date. Nevertheless, if a Holder surrenders for redemption a Bearer Security missing any such coupons, the Company may deduct the face amount of such coupons from the redemption price. If thereafter the Holder surrenders to the Paying Agent the miss- ing coupons, the Company will return the amount so deducted. The Company also may waive surrender of the missing coupons if it receives an indemnity bond satisfactory to the Company. SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall deliver to the Holder a new Security of the same series equal in principal amount to the unredeemed portion of the Security surrendered. -15- ARTICLE 4 -- COVENANTS SECTION 4.01. Certain Definitions. "Lien" means any mortgage, pledge, security interest or lien. "Subsidiary" means a corporation a majority of whose Vot- ing Stock is owned by the Company or a Subsidiary. "Voting Stock" means capital stock having voting power under ordinary circumstances to elect directors. "Yield to Maturity" means the yield to maturity on a Secu- rity at the time of its issuance or at the most recent determi- nation of interest on the Security. SECTION 4.02. Payment of Securities. The Company shall pay the principal of and interest on a series in accordance with the terms of the Securities for the series, any related coupons, and this Indenture. Principal and interest on a series shall be considered paid on the date due if the Paying Agent for the series holds on that date money sufficient to pay all principal and interest then due on the series. SECTION 4.03. Overdue Interest. Unless the Bond Resolution otherwise provides, the Company shall pay interest on overdue principal of a Security of a series at the rate (or Yield to Maturity in the case of a Dis- counted Security) borne by the series; it shall pay interest on overdue installments of interest at the same rate or Yield to Maturity to the extent lawful. SECTION 4.04. No Lien Created, etc. This Indenture and the Securities do not create a Lien, charge or encumbrance on any property of the Company or any Subsidiary. -16- SECTION 4.05. Compliance Certificate. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a brief cer- tificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Com- pany, as to the signer's knowledge of the Company's compliance with all conditions and covenants under this Indenture (deter- mined without regard to any period of grace or requirement of notice provided herein). Any other obligor on the Securities shall also deliver to the Trustee such a certificate as to its compliance with this Indenture within 120 days after the end of each of its fiscal years. The certificates need not comply with Section 11.04. SECTION 4.06. SEC Reports. The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, copies of the annual reports and of the information, documents, and other reports (or such portions of the foregoing as the SEC may prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Any other obligor on the Securities shall do likewise as to the above items which it is required to file with the SEC pursuant to those sections. ARTICLE 5 -- SUCCESSORS SECTION 5.01. When Company May Merge, etc. Unless the Bond Resolution establishing a Series otherwise provides, the Company shall not consolidate with or merge into, or transfer all or substantially all of its assets to, any per- son unless: (1) the person is organized under the laws of the United States or a State thereof; (2) the person assumes by supplemental indenture all the obligations of the Company under this Inden- ture, the Securities and any coupons; -17- (3) all required approvals of any regulatory body having jurisdiction over the transaction shall have been obtained; and (4) immediately after the transaction no Default exists. The successor shall be substituted for the Company, and thereafter all obligations of the Company under this Indenture, the Securities and any coupons shall terminate. ARTICLE 6 -- DEFAULTS AND REMEDIES SECTION 6.01. Events of Default. Unless the Bond Resolution otherwise provides, an "Event of Default" on a series occurs if: (1) the Company defaults in any payment of interest on any Securities of the series when the same becomes due and payable and the Default contin- ues for a period of 60 days; (2) the Company defaults in the payment of the prin- cipal of any Securities of the series when the same becomes due and payable at maturity or upon redemption, acceleration or otherwise; (3) the Company defaults in the payment or satisfac- tion of any sinking fund obligation with respect to any Securities of a Series as required by the Securities Resolution establishing such series and the Default continues for a period of 60 days; (4) the Company defaults in the performance of any of its other agreements applicable to the series and the Default continues for 90 days after the notice specified below; (5) the Company pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, -18- (C) consents to the appointment of a Custodian for it or for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian for the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 60 days; or (7) there occurs any other Event of Default provided for in the series. The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liqui- dator or a similar official under any Bankruptcy Law. A Default under clause (4) is not an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the series notify the Company of the Default and the Company does not cure the Default within the time specified after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a "Notice of Default." If Holders notify the Company of a Default, they shall notify the Trustee at the same time. The failure to redeem any Security subject to a Condi- tional Redemption is not an Event of Default if any event on which such redemption is so conditioned does not occur and is not waived before the redemption date. SECTION 6.02. Acceleration. If an Event of Default occurs and is continuing on a series, the Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the series by notice to the -19- Company and the Trustee, may declare the principal of and accrued interest on all the Securities of the series to be due and payable immediately. Discounted Securities may provide that the amount of principal due upon acceleration is less than the stated principal amount. The Holders of a majority in principal amount of the series by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default on the series have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration. SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing on a series, the Trustee may pursue any available remedy to collect principal or interest then due on the series, to enforce the performance of any provision applicable to the series, or otherwise to protect the rights of the Trustee and Holders of the series. The Trustee may maintain a proceeding even if it does not possess any of the Securities or coupons or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permit- ted by law. SECTION 6.04. Waiver of Past Defaults. Unless the Bond Resolution otherwise provides, the Holders of a majority in principal amount of a series by notice to the Trustee may waive an existing Default on the series and its consequences except: (1) a Default in the payment of the principal of or interest on the series, or (2) a Default in respect of a provision that under Section 10.02 cannot be amended without the con- sent of each Securityholder affected. -20- SECTION 6.05. Control by Majority. The Holders of a majority in principal amount of a series may direct the time, method and place of conducting any pro- ceeding for any remedy available to the Trustee, or of exer- cising any trust or power conferred on the Trustee, with respect to the series. However, the Trustee may refuse to fol- low any direction that conflicts with law or this Indenture. SECTION 6.06. Limitation on Suits. A Securityholder of a series may pursue a remedy with respect to the series only if: (1) the Holder gives to the Trustee notice of a con- tinuing Event of Default on the series; (2) the Holders of at least 25% in principal amount of the series make a request to the Trustee to pursue the remedy; (3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; (4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (5) during such 60-day period the Holders of a majority in principal amount of the series do not give the Trustee a direction inconsistent with such request. A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder. SECTION 6.07. Collection Suit by Trustee. If an Event of Default in payment of interest, principal or sinking fund specified in Section 6.01(1), (2) or (3) occurs and is continuing on a series, the Trustee may recover judgment in it own name and as trustee of an express trust against the Company for the whole amount of principal and interest remain- ing unpaid on the series. -21- SECTION 6.08. Priorities. If the Trustee collects any money for a series pursuant to this Article, it shall pay out the money in the following order: First: to the Trustee for amounts due under Section 7.06; Second: to Securityholders of the series for amounts due and unpaid for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable for princi- pal and interest, respectively; and Third: to the Company. The Trustee may fix a payment date for any payment to Securityholders. ARTICLE 7 -- TRUSTEE SECTION 7.01. Rights of Trustee. (1) The Trustee may rely on any document believed by it to be genuine and to have been signed or pre- sented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (2) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Certificate or Opinion. (3) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (4) The Trustee shall not be liable for any action it takes or omits to take in good faith in accordance with a direction received by it pur- suant to Section 6.05. (5) The Trustee may refuse to perform any duty or exercise any right or power which it reasonably -22- believes may expose it to any loss, liability or expense unless it receives indemnity satisfac- tory to it against such loss, liability or expense. (6) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (7) The Trustee shall have no duty with respect to a Default unless it has actual knowledge of the Default. (8) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized and within its powers. (9) Any Agent shall have the same rights and be pro- tected to the same extent as if it were Trustee. SECTION 7.02. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities or coupons and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. SECTION 7.03. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities or any coupons; it shall not be accountable for the Company's use of the proceeds from the Securities; it shall not be responsible for any state- ment in the Securities or any coupons; it shall not be respon- sible for any overissue; it shall not be responsible for deter- mining whether the form and terms of any Securities or coupons were established in conformity with this Indenture; and it shall not be responsible for determining whether any Securities were issued in accordance with this Indenture. SECTION 7.04. Notice of Defaults. If a Default occurs and is continuing on a series and if it is known to the Trustee, the Trustee shall mail a notice of -23- the Default within 90 days after it occurs to Holders of Regis- tered Securities of the series. Except in the case of a Default in payment on a series, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interest of Holders of the series. The Trustee shall withhold notice of a Default described in Section 6.01(4) until at least 90 days after it occurs. SECTION 7.05. Reports by Trustee to Holders. Any report required by TIA Section 313(a) to be mailed to Securityholders shall be mailed by the Trustee on or before July 15 of each year. A copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each stock exchange on which any Securities are listed. The Company shall notify the Trustee when any Securities are listed on a stock exchange. SECTION 7.06. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's com- pensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee against any loss or liability incurred by it. The Trustee shall notify the Com- pany promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall coop- erate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through negligence or bad faith. To secure the Company's payment obligations in this Sec- tion, the Trustee shall have a lien prior to the Securities and any coupons on all money or property held or collected by the -24- Trustee, except that held in trust to pay principal or interest on particular securities. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(5) or (6) occurs, such expenses and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of the Section shall survive any termina- tion or discharge of this Indenture (including without limita- tion any termination under any Bankruptcy Law) and the resigna- tion or removal of the Trustee. SECTION 7.07. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the suc- cessor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign by so notifying the Company. The Holders of a majority in principal amount of the Securities may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company may remove the Trustee if: (1) the Trustee fails to comply with TIA Section 310(a) or Section 310(b) or with Section 7.09; (2) the Trustee is adjudged a bankrupt or an insolvent; (3) a Custodian or other public officer takes charge of the Trustee or its property; (4) the Trustee becomes incapable of acting; or (5) an event of the kind described in Section 6.01(5) or (6) occurs with respect to the Trustee. The Company also may remove the Trustee with or without cause if the Company so notifies the Trustee six months in advance and if no Default occurs during the six-month period. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. -25- If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with TIA Section 310(a) or Section 310(b) or with Section 7.09, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Registered Securities. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.06. SECTION 7.08. Successor Trustee by Merger, etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust busi- ness to, another corporation, the successor corporation without any further act shall be the successor Trustee. SECTION 7.09. Trustee's Capital and Surplus. The Trustee at all times shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published report of condition. ARTICLE 8 -- DISCHARGE OF INDENTURE SECTION 8.01. Defeasance. Securities of a series may be defeased in accordance with their terms and, unless the Bond Resolution otherwise provides, in accordance with this Article. The Company at any time may terminate as to a series all of its obligations under this Indenture, the Securities of the series and any related coupons ("legal defeasance option"). -26- The Company at any time may terminate as to a series its obli- gations, if any, under any restrictive covenants which may be applicable to a particular series ("covenant defeasance option"). However, in the case of the legal defeasance option, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.06, 7.07 and 8.04 shall survive until the Securi- ties of the series are no longer outstanding; thereafter the Company's obligations in Section 7.06 shall survive. The Company may exercise its legal defeasance option not- withstanding its prior exercise of its covenant defeasance option. If the Company exercises its legal defeasance option, a series may not be accelerated because of an Event of Default. If the Company exercises it covenant defeasance option, a series may not be accelerated by reference to any restrictive covenants which may be applicable to a particular series so defeased under the terms of the series. The Trustee upon request shall acknowledge in writing the discharge of those obligations that the Company terminates. SECTION 8.02. Conditions to Defeasance. The Company may exercise as to a series its legal defea- sance option or its covenant defeasance option if: (1) the Company irrevocably deposits in trust with the Trustee or another trustee money or U.S. Government Obligations; (2) the Company delivers to the Trustee a certifi- cate from a nationally recognized firm of inde- pendent accountants expressing their opinion that the payments of principal and interest when due on the deposited U.S. Government Obligations without reinvestment plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the Securities of the series to maturity or redemption, as the case may be; (3) immediately after the deposit no Default exists; (4) the deposit does not constitute a default under any other agreement binding on the Company; -27- (5) the deposit does not cause the Trustee to have a conflicting interest under TIA Section 310(a) or Section 310(b) as to another series; (6) the Company delivers to the Trustee an Opinion of Counsel to the effect that Holders of the series will not recognize income, gain or loss for Federal income tax purposes as a result of the defeasance; and (7) 91 days pass after the deposit is made and dur- ing the 91-day period no Default specified in Section 6.01(5) or (6) occurs that is continuing at the end of the period. Before or after a deposit the Company may make arrange- ments satisfactory to the Trustee for the redemption of Securi- ties at a future date in accordance with Article 3. "U.S. Government Obligations" means direct obligations of (i) the United States or (ii) an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed by the United States, which, in either case, have the full faith and credit of the United States pledged for pay- ment and which are not callable at the issuer's option, or cer- tificates representing an ownership interest in such obligations. SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 8.02. It shall apply the deposited money and the money from U.S. Govern- ment Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal and interest on Securities of the defeased series. SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them at any time. The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of princi- pal or interest that remains unclaimed for two years. After payment to the Company, Securityholders entitled to the money must look to the Company for payment as unsecured general -28- creditors unless an abandoned property law designates another person. ARTICLE 9 -- CONVERSION SECTION 9.01. Conversion Privilege. If the Bond Resolution establishing the terms of a series of securities so provides, Securities of any series may be convertible into or for Common Stock or other equity or debt securities (a "Conversion Right"). The Bond Resolution may establish, among other things, the Conversion Rate, provisions for adjustments to the Conversion Rate and limitations upon exercise of the Conversion Right. Unless the Bond Resolution otherwise provides, a Holder may convert a portion of a Security if the portion is $1,000 or an integral multiples thereof. Provisions of this Indenture that apply to the conversion of the aggregate princi- pal amount of a Security also apply to conversion of a portion of it. SECTION 9.02. Conversion Procedure. To convert a Security a Holder must satisfy all requirements in the Securities or the Bond Resolution and (i) complete and manually sign the conversion notice (the "Con- version Notice") provided for in the Bond Resolution or the Security (or complete and manually sign a facsimile thereof) and deliver such notice to the Conversion Agent or any other office or agency maintained for such purpose, (ii) surrender the Security to the Conversion Agent or at such other office or agency by physical delivery, (iii) if required, furnish appro- priate endorsements and transfer documents, and (iv) if required, pay all transfer or similar taxes. The date on which such notice shall have been received by and the Security shall have been so surrendered to the Conversion Agent is the "Con- version Date." Such Conversion Notice shall be irrevocable and may not be withdrawn by a Holder for any reason. The Company will complete settlement of any conver- sion of Securities not later than the fifth business day fol- lowing the Conversion Date in respect of the cash portion elected to be delivered in lieu of the securities into which the Security is convertible and not later than the seventh business day following the Conversion Date in respect of the portion to be settled in such securities. -29- If any Security is converted between the record date for the payment of interest and the next succeeding interest payment date, such Security must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount so converted (unless such Security shall have been called for redemption during such period, in which case no such payment shall be required). A Security con- verted on an interest payment date need not be accompanied by any payment, and the interest on the principal amount of the Security being converted will be paid on such interest payment date to the registered holder of such Security on the immedi- ately preceding record date. Subject to the aforesaid right of the registered holder to receive interest, no payment or adjustment will be made on conversion for interest accrued on the converted Security or for interest, dividends or other dis- tributions payable on any security issued on conversion. If a Holder converts more than one Security at the same time, the securities into which the Security is convert- ible issuable or cash payable upon the conversion shall be based on the total principal amount of the Securities converted. Upon surrender of a Security that is converted in part the Trustee shall authenticate for the Holder a new Secu- rity equal in principal amount to the unconverted portion of the Security surrendered; except that if a Global Security is so surrendered the Trustee shall authenticate and deliver to the Depositary a new Global Security in a denomination equal to and in exchange for the unconverted portion of the principal of the Global Security so surrendered. If the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday. SECTION 9.03. Taxes on Conversion. If a Holder of a Security exercises a Conversion Right, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue of the securities into which the Security is convertible upon the conversion. How- ever, the Holder shall pay any such tax which is due because securities or other property are issued in a name other than the Holder's name. Nothing herein shall preclude any income tax or other withholding required by law or regulations. -30- SECTION 9.04. Company Determination Final. Any determination that the Board of Directors makes pursuant to this Article 9 or consistent with terms provided for in any Bond Resolution is conclusive, absent manifest error. SECTION 9.05. Trustee's and Conversion Agent's Disclaimer. The Trustee (and each Conversion Agent other than the Company) has no duty to determine when or if an adjustment under this Article 9 or any Bond Resolution should be made, how it should be made or calculated or what it should be. The Trustee (and each Conversion Agent other than the Company) makes no representation as to the validity or value of any securities issued upon conversion of Securities. The Trustee (and each Conversion Agent other than the Company) shall not be responsible for the Company's failure to comply with this Article 9 or any provision of a Bond Resolution relating to a Conversion Right. SECTION 9.06. Company to Provide Conversion Securities. The Company shall reserve out of its authorized but unissued Common Stock or its Common Stock held in treasury suf- ficient shares to permit the conversion of all of the Securi- ties convertible into Common Stock. The Company shall arrange and make available for issuance upon conversion the full amount of any other securities into which the Securities are convert- ible to permit such conversion of the Securities. All shares of Common Stock or other equity securities of any person which may be issued upon conversion of the Secu- rities shall be validly issued, fully paid and non-assessable. The Company will comply with all securities laws reg- ulating the offer and delivery of securities upon conversion of Securities. SECTION 9.07. Cash Settlement Option. If the Bond Resolution so provides, the Company may elect to satisfy, in whole or in part, a Conversion Right of Securities convertible into Common Stock or other securities of any person by the delivery of cash. The amount of cash to be delivered shall be equal to the Market Price on the last Trad- ing Day preceding the applicable Conversion Date of a share of -31- Common Stock or other securities of any person into which the Securities are convertible multiplied by the number of shares of Common Stock or the number of shares or principal amount of other securities into which the Securities are convertible, respectively, in respect of which the Company elects to deliver cash. If the Company elects to satisfy, in whole or in part, a Conversion Right by the delivery of shares of Common Stock or other securities, no fractional shares or portion of other securities will be delivered. Instead, the Company will pay cash based on the Market Price for such fractional share of Common Stock or portion of other securities. The "Market Price" of the Common Stock into which Securities or other equity securities into which the Securities are convertible may be converted pursuant to a Bond Resolution or this Article 9 on any Trading Day means the weighted average per share sale price for all sales of the Common Stock or other equity securities on such Trading Day (or, if the information necessary to calculate such weighted average per share sale price is not reported, the average of the high and low sale prices, or if no sales are reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and average ask prices), as reported in the composite transactions for the New York Stock Exchange, or if the Common Stock or other equity securities into which the Securities are convertible is not listed or admitted to trading on such exchange, as reported in the composite transactions for the principal national or regional United States securities exchange on which the Common Stock or other equity securities into which the Securities are convertible is listed or admitted to trading or, if the Common Stock or other equity securities into which the Securities are convertible is not listed or admitted to trading on a United States national or regional securities exchange, as reported by NASDAQ or by the National Quotation Bureau Incorporated or if not so reported as deter- mined in the manner set forth in the appropriate Bond Resolu- tion. In the absence of such quotations, the Company shall be entitled to determine the Market Price on the basis of such quotations as it considers appropriate. The "Market Price" of any debt security into which Securi- ties are convertible shall be determined as set forth in the applicable Bond Resolution. -32- SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock. If the Securities are convertible into Common Stock and the Company: (1) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock; (2) subdivides its outstanding shares of Common Stock into a greater number of shares; (3) combines its outstanding shares of Common Stock into a smaller number of shares; (4) pays a dividend or makes a distribution on its Common Stock in shares of its Capital Stock other than Common Stock; or (5) issues by reclassification of its Common Stock any shares of its Capital Stock, then the conversion privilege and the Conversion Rate in effect immediately prior to such action shall be adjusted so that the Holder of a Security thereafter converted may receive the num- ber of shares of Capital Stock of the Company (or, at the Com- pany's option, an equivalent amount in cash) which he would have owned immediately following such action if he had con- verted the Security immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a sub- division, combination or reclassification. If the Security into which the Securities are con- vertible are other than Common Stock of the Company, the con- version rate sall be subject to adjustment as set forth in the applicable Bond Resolution. If after an adjustment a Holder of a Security may, upon conversion, receive shares of two or more classes of Capi- tal Stock of the Company or other securities, the Board of Directors of the Company shall determine allocation of the adjusted Conversion Rate between or among the classes of Capi- tal Stock or other securities. After such allocation, the con- version privilege and the Conversion Rate of each class of Cap- ital Stock or other securities shall thereafter be subject to adjustment on terms comparable to those applicable to Common Stock in this Article or in such Bond Resolution. -33- SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below Market Price. If the Securities are convertible with Common Stock, and the Company issues to all holders of Common Stock rights, options or warrants to subscribe for or purchase shares of Com- mon Stock, or any securities convertible into or exchangeable for shares of Common Stock, or rights, options or warrants to subscribe for or purchase such convertible or exchangeable securities at a Price Per Share (as defined and determined according to the formula given below) lower than the current Market Price on the date of such issuance, the Conversion Rate shall be adjusted in accordance with the following formula: AC = CC x O + N ----- O + R - M where: AC = the adjusted Conversion Rate. CC = the then current Conversion Rate. O = the number of shares of Common Stock outstanding immedi- ately prior to such issuance (which number shall include shares owned or held by or for the account of the Company). N = the "Number of Shares," which (i) in the case of rights, options or warrants to subscribe for or purchase shares of Common Stock or of securities convertible into or exchangeable for shares of Common Stock, is the maximum number of shares of Common Stock initially issuable upon exercise, conversion or exchange thereof; and (ii) in the case of rights, options or warrants to subscribe for or purchase convertible or exchangeable securities, is the maximum number of shares of Common Stock initially issu- able upon the conversion or exchange of the convertible or exchangeable securities issuable upon the exercise of such rights, options or warrants. R = the proceeds received or receivable by the Company, which (i) in the case of rights, options or warrants to sub- scribe for or purchase shares of Common Stock or of secu- rities convertible into or exchangeable for shares of Com- mon Stock, is the aggregate amount received or receivable by the Company in consideration for the sale and issuance of such rights, options, warrants or convertible or exchangeable securities, plus the minimum aggregate amount -34- of additional consideration, other than the convertible or exchangeable securities, payable to the Company upon exer- cise, conversion or exchange thereof; and (ii) in the case of rights, options or warrants to subscribe for or pur- chase convertible or exchangeable securities, is the aggregate amount received or receivable by the Company in consideration for the sale and issuance of such rights, options or warrants, plus the minimum aggregate considera- tion payable to the Company upon the exercise thereof, plus the minimum aggregate amount of additional considera- tion, other than the convertible or exchangeable securi- ties, payable upon the conversion or exchange of the con- vertible or exchangeable securities; provided, that in each case the proceeds received or receivable by the Com- pany shall be deemed to be the amount of gross cash pro- ceeds without deducting therefrom any compensation paid or discount allowed in the sale, underwriting or purchase thereof by underwriters or dealers or others performing similar services or any expenses incurred in connection therewith. M = the current Market Price per share of Common Stock on the date of issue of the rights, options or warrants to sub- scribe for or purchase shares of Common Stock or the secu- rities convertible into or exchangeable for shares of Com- mon Stock or the rights, options or warrants to subscribe for or purchase convertible or exchangeable securities. "Price Per Share" shall be defined and determined accord- ing to the following formula: P = R - N where: P = Price Per Share and R and N have the meanings assigned above. If the Company shall issue rights, options, warrants or convertible or exchangeable securities with respect to its Common Stock for a consideration consisting, in whole or in part, of property other than cash the amount of such considera- tion shall be determined in good faith by the Board of Direc- tors whose determination shall be conclusive and evidenced by a resolution of the Board of Directors filed with the Trustee. The adjustment shall be made successively whenever any such additional rights, options, warrants or convertible or -35- exchangeable securities with respect to its Common Stock are issued, and shall become effective immediately after the date of issue of such shares, rights, options, warrants or convert- ible or exchangeable securities. To the extent that such rights, options or warrants to acquire Common Stock expire unexercised or to the extent any convertible or exchangeable securities with respect to its Com- mon Stock are redeemed by the Company or otherwise cease to be convertible or exchangeable into shares of Common Stock, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect had the adjustment made upon the date of issuance of such rights, options, warrants or convert- ible or exchangeable securities been made upon the basis of the issuance of rights, options or warrants to subscribe for or purchase only the number of shares of Common Stock as to which such rights, options or warrants were actually exercised and the number of shares of Common Stock that were actually issued upon the conversion or exchange of the convertible or exchange- able securities. If the Securities are convertible into securities other than the Common Stock, any adjustment in the Conversion Rate required for the issuance or sale of the securities into which the Securities are convertible shall be made as set forth in the Bond Resolution. SECTION 9.10. Adjustment for Other Distributions. If the Securities are initially convertible into Com- mon Stock and the Company distributes to all holders of its Common Stock any of its assets or debt securities or any rights or warrants to purchase assets or debt securities of the Com- pany, the Conversion Rate shall be adjusted in accordance with the following formula: AC = CC x (O x M) ----------- (O x M) - F where: AC = the adjusted Conversion Rate. CC = the then current Conversion Rate. O = the number of shares of Common Stock outstanding on the record date mentioned below (which number shall include shares owned or held by or for the account of the Company). -36- M = the current Market Price per share of Common Stock on the record date mentioned below. F = the fair market value on the record date of the assets, securities, rights or warrants distributed. The Board of Directors of the Company shall determine the fair market value. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the distribution. If the securities into which the Securities are con- vertible are other than Common Stock, any adjustments for such other distribution shall be made as set forth in the Bond Resolution. This Section does not apply to cash dividends or dis- tributions or to reclassifications or distributions referred to in Section 9.08. Also, this Section does not apply to shares issued below Market Price referred to in Section 9.09. SECTION 9.11. Voluntary Adjustment. The Company at any time may increase the Conversion Rate, temporarily or otherwise, by any amount but in no event shall such Conversion Rate result in the issuance of Capital Stock at a price less than the par value of such Capital Stock at the time such increase is made. SECTION 9.12. When Adjustment May Be Deferred. No adjustment in the Conversion Rate need be made unless the adjustment would require a change of at least 1% in the Conversion Rate. Any adjustments that are not made due to the immediately preceding sentence shall be carried forward and taken into account in any subsequent adjustment; provided, that any adjustment carried forward shall be deferred not in excess of three years, whereupon any adjustment to the Conversion Rate will be effected. All calculations under this Article 9 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. -37- SECTION 9.13. When No Adjustment Required. Except as set forth in Section 9.09, no adjustment in the Conversion Rate shall be made because the Company issues, in exchange for cash, property or services, shares of Common Stock, or any securities convertible into shares of Common Stock, or securities carrying the right to purchase shares of Common Stock or such convertible securities. No adjustment in the Conversion Rate need be made for rights to purchase or the sale of Common Stock pursuant to a Company plan providing for reinvestment of dividends or interest. No adjustment in the Conversion Rate need be made for a change in the par value of the Common Stock or other securi- ties having a par value. No adjustment need be made for a transaction referred to in Section 9.08, 9.09 or 9.10 if Securityholders are to par- ticipate in the transaction on a basis and with notice that the Board of Directors determines to be fair and appropriate in light of the basis and notice on which holders of Common Stock or other securities into which the Securities are convertible participate in the transaction. SECTION 9.14. Notice of Adjustment. Whenever the Conversion Rate is adjusted, the Company shall promptly mail to Holders of Securities affected a notice of the adjustment. The Company shall file with the Trustee an Officers' Certificate or a certificate from the Company's inde- pendent public accountants stating the facts requiring the adjustment and the manner of computing it. The certificate shall be conclusive evidence that the adjustment is correct, absent manifest error. SECTION 9.15. Notice of Certain Transactions. If: (1) the Company proposes to take any action that would require an adjustment in the Conversion Rate, (2) the Company proposes to take any action that would require a supplemental indenture pursuant to Section 9.16, or -38- (3) there is a proposed liquidation or dissolution of the Company or of the issuer of any other security into which the Securities are convertible, the Company shall mail to Holders of Securities of any affected series a notice stating the proposed record date for a dividend or distribution or the proposed effective date of a subdivi- sion, combination, reclassification, consolidation, merger, transfer, lease, liquidation or dissolution. The Company shall mail the notice at least 15 days before such date. Failure to mail the notice or any defect in it shall not affect the valid- ity of the transaction. SECTION 9.16. Reorganization of the Company. If the Company is a party to a transaction subject to Section 5.01, the successor corporation (if other than the Com- pany) shall enter into a supplemental indenture which shall provide that the Holder of a Security may convert it into the kind and amount of securities, cash or other assets which he would have owned immediately after the consolidation, merger or transfer if he had converted the Security immediately before the effective date of the transaction. The supplemental inden- ture shall provide for adjustments which shall be as nearly equivalent as may be practical to the adjustments provided for in this Article. The successor company shall mail to Holders of Securities of any affected series a notice briefly describ- ing the supplemental indenture. If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply. ARTICLE 10 -- AMENDMENTS SECTION 10.01. Without Consent of Holders. The Company and the Trustee may amend this Indenture, the Securities or any coupons without the consent of any Securityholder: (1) to cure any ambiguity, omission, defect or inconsistency; (2) to comply with Article 5 or Section 9.16; -39- (3) to provide that specific provisions of this Indenture shall not apply to a series not previ- ously issued; (4) to create a series and establish its terms; (5) to provide for a separate Trustee for one or more series; or (6) to make any change that does not materially adversely affect the rights of any Securityholder. SECTION 10.02. With Consent of Holders. Unless the Bond Resolution otherwise provides, the Company and the Trustee may amend this Indenture, the Securities and any coupons with the written consent of the Holders of a major- ity in principal amount of the Securities of all series affected by the amendment voting as one class. However, with- out the consent of each Securityholder affected, an amendment under this Section may not: (1) reduce the amount of Securities whose Holders must consent to an amendment; (2) reduce the interest on or change the time for payment of interest on any Security; (3) change the fixed maturity of any Security; (4) reduce the principal of any non-Discounted Secu- rity or reduce the amount of principal of any Discounted Security that would be due upon an acceleration thereof; (5) change the currency in which principal or inter- est on a Security is payable; (6) make any change that materially adversely affects the right to convert any Security; or (7) make any change in Section 6.04 or 10.02, except to increase the amount of Securities whose Hold- ers must consent to an amendment or waiver or to provide that other provisions of this Indenture cannot be amended or waived without the consent of each Securityholder affected thereby. -40- An amendment of a provision included solely for the bene- fit of one or more series does not affect Securityholders of any other series. Securityholders need not consent to the exact text of a proposed amendment or waiver; it is sufficient if they consent to the substance thereof. SECTION 10.03. Compliance with Trust Indenture Act. Every amendment pursuant to Section 10.01 or 10.02 shall be set forth in a supplemental indenture that complies with the TIA as then in effect. If a provision of the TIA requires or permits a provision of this Indenture and the TIA provision is amended, then the Indenture provision shall be automatically amended to like effect. SECTION 10.04. Effect of Consents. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Securityholder enti- tled to consent to it. A consent to an amendment or waiver by a Holder of a Secu- rity is a continuing consent by the Holder and every subsequent Holder of a Security that evidences the same debt as the con- senting Holder's Security. Any Holder or subsequent Holder may revoke the consent as to his Security if the Trustee receives notice of the revocation before the amendment or waiver becomes effective. The Company may fix a record date for the determination of Holders of Registered Securities entitled to give a consent. The record date shall not be less than 10 nor more than 60 days prior to the first written solicitation of Securityholders. SECTION 10.05. Notation on or Exchange of Securities. The Company or the Trustee may place an appropriate nota- tion about an amendment or waiver on any Security thereafter authenticated. The Company may issue in exchange for affected Securities new Securities that reflect the amendment or waiver. -41- SECTION 10.06. Trustee Protected. The Trustee need not sign any supplemental indenture that adversely affects its rights. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opin- ion of Counsel and an Officers' Certificate each stating that the execution of any amendment or supplement or waiver autho- rized puruant to this Article is authorized or permitted by this Indenture, and that such amendment or supplement or waiver constitutes the legal, valid and binding obligation of the Company. ARTICLE 11 -- MISCELLANEOUS SECTION 11.01. Trust Indenture Act. The provisions of TIA Sections 310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by this Inden- ture) are a part of and govern this Indenture, whether or not expressly set forth herein. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. SECTION 11.02. Notices Any notice by one party to another is duly given if in writing and delivered in person, sent by facsimile transmission confirmed by mail or mailed by first-class mail to the other's address shown below: Company: Southwestern Public Service Company Tyler at Sixth Amarillo, Texas 79101 Fax: 806-378-2995 Attention: Secretary Trustee: Attention: -42- A party by notice to the other parties may designate addi- tional or different addresses for subsequent notices. Any notice mailed to a Securityholder shall be mailed to his address shown on the register kept by the Transfer Agent or on the list referred to in Section 2.06. Failure to mail a notice to a Securityholder or any defect in a notice mailed to a Securityholder shall not affect the sufficiency of the notice mailed to other Securityholders or the sufficiency of any pub- lished notice. If a notice is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. If the Company mails a notice to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time. If in the Company's opinion it is impractical to mail a notice required to be mailed or to publish a notice required to be published, the Company may give such substitute notice as the Trustee approves. Failure to publish a notice as required or any defect in it shall not affect the sufficiency of any mailed notice. All notices shall be in the English language, except that any published notice may be in an official language of the country of publication. A "notice" includes any communication required by this Indenture. SECTION 11.03. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall if so requested furnish to the Trustee: (1) an Officers' Certificate stating that, in the opinion of the signers, all conditions prece- dent, if any, provided for in this Indenture relating to the proposed action have been com- plied with; and (2) an Opinion of Counsel stating that, in the opin- ion of such counsel, all such conditions prece- dent have been complied with. -43- SECTION 11.04. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the person making such certifi- cate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such cer- tificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such cove- nant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 11.05. Rules by Company and Agents. The Company may make reasonable rules for action by or a meeting of Securityholders. An Agent may make reasonable rules and set reasonable requirements for its functions. SECTION 11.06. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or a day on which banking institutions are not required to be open. If a payment date is a Legal Holiday at a place of payment, unless the Bond Resolution establishing a series otherwise provides with respect to Securities of the series, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. SECTION 11.07. No Recourse Against Others. All liability described in the Securities of any director, officer, employee or stockholder, as such, of the Company is waived and released. -44- SECTION 11.08. Duplicate Originals. The parties may sign any number of copies of this Inden- ture. One signed copy is enough to prove this Indenture. SECTION 11.09. Governing Law. The laws of the State of New York shall govern this Inden- ture, the Securities and any coupons, unless federal law governs. -45- SIGNATURES Dated: , 1996 SOUTHWESTERN PUBLIC SERVICE COMPANY By Name: Title: (SEAL) Attest: ________________________ Name: Title: Dated: , 1996 [ ] By Name: Title: Attest: (SEAL) _________________________ Name: Title: -46- EXHIBIT A A Form of Registered Security No. $ SOUTHWESTERN PUBLIC SERVICE COMPANY [Title of Security] Southwestern Public Service Company promises to pay to or registered assigns the principal sum of Dollars on , Interest Payment Dates: Record Dates: Dated: [ ] SOUTHWESTERN PUBLIC SERVICE Transfer Agent and Paying Agent COMPANY by (SEAL) Authenticated: Chairman of the Board [Name of Registrar] Registrar, by Authorized Signature Vice-President A-1 SOUTHWESTERN PUBLIC SERVICE COMPANY [Title of Security] 1. Interest.1 Southwestern Public Service Company ("Company"), a corporation organized and existing under the laws of the State of New Mexico, promises to pay interest on the principal amount of this Security at the rate per annum shown above. The Company will pay interest on and of each year commencing , 19__. Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no inter- est has been paid, from , 19__. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment.2 The Company will pay interest on the Securities to the persons who are registered holders of Securities at the close of business on the record date for the next interest payment date, except as otherwise pro- vided in the Indenture. Holders must surrender Secu- rities to a Paying Agent to collect principal pay- ments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company may pay principal and interest by check payable in such money. It may mail an interest check to a holder's registered address. 3. Bond Agents. Initially, Attention: , will act as Paying Agent, Transfer Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar 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. The Company issued the securities of this series ("Securities") under an Indenture dated as , 1996 ("Indenture") between the Company and A-2 ("Trustee"). The terms of the Securi- ties include those stated in the Indenture and in the Bond Resolution creating the Securities and those made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Securityholders are referred to the Indenture, the Bond Resolution and the Act for a statement of such terms. 5. Optional Redemption.3 On or after , the Company may redeem all the Securities at any time or some of them from time to time at the following redemption prices (expressed in percentages of principal amount), plus accrued interest to the redemption date. If redeemed during the 12-month period beginning, Year Percentage Year Percentage and thereafter at 100%. 6. Mandatory Redemption.4 The Company will redeem $ principal amount of Securities on and on each thereafter through at a redemption price of 100% of principal amount, plus accrued interest to the redemption date.5 The Company may reduce the principal amount of Securities to be redeemed pursuant to this paragraph by sub- tracting 100% of the principal amount (excluding pre- mium) of any Securities (i) that the Company has acquired or that the Company has redeemed other than pursuant to this paragraph and (ii) that the Company has delivered to the Registrar for cancellation. The Company may so subtract the same Security only once. 7. Additional Optional Redemption.6 In addition to redemptions pursuant to the above paragraph(s), the Company may redeem not more than $ principal amount of Securities on and on each thereafter through at a redemption price of 100% of A-3 principal amount, plus accrued interest to the redemption date. 8. Notice of Redemption.7 Notice of redemption will be mailed at least 30 days before the redemption date to each holder of Securi- ties to be redeemed at his registered address. A notice of redemption may provide that it is subject to the occurrence of any event before the date fixed for such redemption as described in such notice ("Conditional Redemption") and such notice of Condi- tional Redemption shall be of no effect unless all such conditions to the redemption have occurred before such date or have been waived by the Company. 9. Conversion.8 A Holder of a Security may convert it into Common Stock of the Company or cash, or a combination thereof, at the Company's option, at any time before the close of business on ___________, or, if the Security is called for redemption, the Holder may convert it at any time before the close of business on the redemption date. The initial Conversion Rate is ____________ (or an equivalent amount in cash) per $1,000 principal amount of the Securities, subject to adjustment as provided in Article 9 of the Indenture.9 The Company will deliver a check in lieu of any fractional share. On conversion no payment or adjustment for interest accrued on the Securities will be made nor for dividends on the Common Stock issued on conversion. If any Security is converted between the record date for the payment of interest and the next succeeding interest payment date, such Security must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount so converted (unless such Security shall have been called for redemption, in which case no such payment shall be required). A Security converted on an interest payment date need not be accompanied by any payment, and the interest on the principal amount of the Security being con- verted will be paid on such interest payment date to the registered holder of such Security on the immedi- ately preceding record date. To convert a Security a Holder must (1) complete and sign the conversion notice on the back of the A-4 Security, (2) surrender the Security to a Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent and (4) pay any transfer or similar tax if required. A Holder may convert a portion of a Security if the portion is $1,000 or an integral mul- tiple of $1,000. 10. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in denominations of $1,00010 and whole multiples of $1,000. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Transfer Agent may require a holder, among other things, to furnish appropriate endorse- ments and transfer documents and to pay any taxes and fees required by law or the Indenture. The Transfer Agent need not exchange or register the transfer of any Security or portion of a Security selected for redemption. Also, it need not exchange or register the transfer of any Securities for a period of 15 days before a selection of Securities to be redeemed. 11. Persons Deemed Owners. The registered holder of a Security may be treated as its owner for all purposes. 12. Amendments and Waivers. Subject to certain exceptions, the Indenture or the Securities may be amended with the consent of the holders of a majority in principal amount of the securities of all series affected by the amendment.11 Subject to certain exceptions, a default on a series may be waived with the consent of the holders of a majority in principal amount of the series. Without the consent of any Securityholder, the Indenture or the Securities may be amended, among other things, to cure any ambiguity, omission, defect or inconsistency; to provide for assumption of Com- pany obligations to Securityholders; or to make any change that does not materially adversely affect the rights of any Securityholder. A-5 13. Restrictive Covenants.12 The Securities are unsecured general obligations of the Company limited to $ principal amount. The Indenture does not limit other unsecured debt. 14. Successors. When a successor assumes all the obligations of the Company under the Securities and the Indenture, the Company will be released from those obligations. 15. Defeasance Prior to Redemption or Maturity.13 Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Securities and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal and interest on the Securities to redemption or maturity. U.S. Government Obligations are securities backed by the full faith and credit of the United States of America or certificates representing an ownership interest in such Obligations. 16. Defaults and Remedies. An Event of Default14 includes: default for 60 days in payment of interest on the Securities; default in payment of principal on the Securities; default in payment or satisfaction of any sinking fund obliga- tion; default by the Company for a specified period after notice to it in the performance of any of its other agreements applicable to the Securities; cer- tain events of bankruptcy or insolvency; and any other Event of Default provided for in the series. If an Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Securities may declare the principal15 of all the Securities to be due and payable immediately. Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Securityholders notice of A-6 any continuing default (except a default in payment of principal or interest) if it determines that with- holding notice is in their interests. The Company must furnish annual compliance certificates to the Trustee. 17. Trustee Dealings with Company. , the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 18. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Secu- rity waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 19. Authentication. This Security shall not be valid until authenticated by a manual signature of the Registrar. 20. Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act). The Company will furnish to any Securityholder upon writ- ten request and without charge a copy of the Indenture and the Bond Resolution, which contains the text of this Security in larger type. Requests may be made to: Southwestern Public Service Company, Tyler at Sixth, Amarillo, Texas 79101, Atten- tion: Corporate Secretary. A-7 EXHIBIT B A Form of Bearer Security No. $ SOUTHWESTERN PUBLIC SERVICE COMPANY [Title of Security] Southwestern Public Service Company promises to pay to bearer the principal sum of Dollars on , Interest Payment Dates: Dated: [ ] SOUTHWESTERN PUBLIC SERVICE Transfer Agent COMPANY (SEAL) by Authenticated: Chairman of the Board [Name of Registrar] Registrar, by Authorized Signature Vice-President B-1 SOUTHWESTERN PUBLIC SERVICE COMPANY [Title of Security] 1. Interest.1 Southwestern Public Service Company ("Company"), a corporation organized and existing under the laws of the State of New Mexico, promises to pay to bearer interest on the principal amount of this Security at the rate per annum shown above. The Company will pay interest on and of each year commencing , 19 . Interest on the Securities will accrue from the most recent date to which interest has been paid or, if no inter- est has been paid, from , 19 . Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment.2 Holders must surrender Securities and any coupons to a Paying Agent to collect principal and interest pay- ments. 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. 3. Bond Agents. Initially, , Attention: , will act as Transfer Agent, Paying Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar without notice or provide for more than one such agent. The Company or any Affiliate may act in any such capac- ity. Subject to certain conditions, the Company may change the Trustee. 4. Indenture. The Company issued the securities of this series ("Securities") under an Indenture dated as of , 1996 ("Indenture") between the Company and ("Trustee"). The terms of the Securities include those stated in the Indenture and the Bond Resolution and those made part of the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code B-2 Sections 77aaa-77bbbb). Securityholders are referred to the Indenture, the Bond Resolution and the Act for a statement of such terms. 5. Optional Redemption.3 On or after , the Company may redeem all the Securities at any time or some of them from time to time at the following redemption prices (expressed in percentages of principal amount), plus accrued interest to the redemption date. If redeemed during the 12-month period beginning, Year Percentage Year Percentage and thereafter 100%. 6. Mandatory Redemption.4 The Company will redeem $ principal amount of Securities on and on each thereafter through at a redemption price of 100% of principal amount, plus accrued interest to the redemption date.5 The Company may reduce the principal amount of Securities to be redeemed pursu- ant to this paragraph by subtracting 100% of the principal amount (excluding premium) of any Securi- ties (i) that the Company has acquired or that the Company has redeemed other than pursuant to this paragraph and (ii) that the Company has delivered to the Registrar for cancellation. The Company may so subtract the same Security only once. 7. Additional Optional Redemption.6 In addition to redemptions pursuant to the above paragraph(s), the Company may redeem not more than $ principal amount of Securities on and on each thereafter through at a redemption price of 100% of principal amount, plus accrued interest to the redemption date. 8. Notice of Redemption.7 Notice of redemption will be published once in an Authorized Newspaper in the City of New York and if the Securities are listed on any stock exchange located outside the United States and such stock B-3 exchange so requires, in any other required city out- side the United States at least 30 days before the redemption date. Notice of redemption also will be mailed to holders who have filed their names and addresses with the Transfer Agent within the two pre- ceding years. A holder of Securities may miss impor- tant notices if he fails to maintain his name and address with the Transfer Agent. A notice of redemption may provide that it is subject to the occurrence of any event before the date fixed for such redemption as described in such notice ("Conditional Redemption") and such notice of Condi- tional Redemption shall be of no effect unless all such conditions to the redemption have occurred before such date or have been waived by the Company. 9. Conversion.8 A Holder of a Security may convert it into Common Stock of the Company or cash, or a combination thereof, at the Company's option, at any time before the close of business on ___________, or, if the Security is called for redemption, the Holder may convert it at any time before the close of business on the redemption date. The initial Conversion Rate is ____________ (or an equivalent amount in cash) per $1,000 principal amount of the Securities, subject to adjustment as provided in Article 9 of the Indenture.9 The Company will deliver a check in lieu of any fractional share. On conversion no payment or adjustment for interest accrued on the Securities will be made nor for dividends on the Common Stock issued on conversion. If any Security is converted between the record date for the payment of interest and the next succeeding interest payment date, such Security must be accompanied by funds equal to the interest payable on such succeeding interest payment date on the principal amount so converted (unless such Security shall have been called for redemption, in which case no such payment shall be required). A Security converted on an interest payment date need not be accompanied by any payment, and the interest on the principal amount of the Security being con- verted will be paid on such interest payment date to the registered holder of such Security on the immedi- ately preceding record date. To convert a Security a Holder must (1) complete and sign the conversion notice on the back B-4 of the Security, (2) surrender the Security to a Con- version Agent, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion Agent and (4) pay any transfer or simi- lar tax if required. A Holder may convert a portion of a Security if the portion is $1,000 or an integral multiple of $1,000. 10. Denominations, Transfer, Exchange. The Securities are in bearer form with coupons in denominations of $5,00010 and whole multiples of $5,000. The Securities may be transferred by deliv- ery and exchanged as provided in the Indenture. Upon an exchange, the Transfer Agent may require a holder, among other things, to furnish appropriate documents and to pay any taxes and fees required by law or the Indenture. The Transfer Agent need not exchange any Security or portion of a Security selected for redemption. Also, it need not exchange any Securi- ties for a period of 15 days before a selection of Securities to be redeemed. 11. Persons Deemed Owners. The holder of a Security or coupon may be treated as its owner for all purposes. 12. Amendments and Waivers. Subject to certain exceptions, the Indenture or the Securities may be amended with the consent of the holders of a majority in principal amount of the securities of all series affected by the amendment.11 Subject to certain exceptions, a default on a series may be waived with the consent of the holders of a majority in principal amount of the series. Without the consent of any Securityholder, the Inden- ture or the Securities may be amended, among other things, to cure any ambiguity, omission, defect or inconsistency; to provide for assumption of Company obligations to Securityholders; or to make any change that does not materially adversely affect the rights of any Securityholder. B-5 13. Restrictive Covenants.12 The Securities are unsecured general obligations of the Company limited to $ principal amount. The Indenture does not limit other unsecured debt. 14. Successors. When a successor assumes all the obligations of the Company under the Securities, any coupons and the Indenture, the Company will be released from those obligations. 15. Defeasance Prior to Redemption or Maturity.13 Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Securities, any coupons and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of prin- cipal and interest on the Securities to redemption or maturity. U.S. Government Obligations are securities backed by the full faith and credit of the United States of America or certificates representing an ownership interest in such Obligations. 16. Defaults and Remedies. An Event of Default14 includes: default for 60 days in payment of interest on the Securities; default in payment of principal on the Securities; default in payment or satisfaction of any sinking fund obliga- tion; default by the Company for a specified period after notice to it in the performance of any of its other agreements applicable to the Securities; cer- tain events of bankruptcy or insolvency; and any other Event of Default provided for in the series. If an Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Securities may declare the principal15 of all the Securities to be due and payable immediately. Securityholders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, holders of a majority in principal amount of the Securities may direct the Trustee in its exercise of any trust or power. The B-6 Trustee may withhold from Securityholders notice of any continuing default (except a default in payment of principal or interest) if it determines that with- holding notice is in their interests. The Company must furnish annual compliance certificates to the Trustee. 17. Trustee Dealings with Company. , the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 18. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Secu- rity waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 19. Authentication. This Security shall not be valid until authenticated by a manual signature of the Registrar. 20. Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act). The Company will furnish to any Securityholder upon writ- ten request and without charge a copy of the Indenture and the Bond Resolution, which contains the text of this Security in larger type. Requests may be made to: Southwestern Public Service Company, Tyler at Sixth, Amarillo, Texas 79101, Atten- tion: Corporate Secretary. B-7 [FACE OF COUPON] ............... [$]............ Due............ SOUTHWESTERN PUBLIC SERVICE COMPANY [Title of Security] Unless the Security attached to this coupon has been called for redemption, Southwestern Public Service Company (the "Company") will pay to bearer, upon surrender, the amount shown hereon when due. This coupon may be surrendered for payment to any Paying Agent listed on the back of this coupon unless the Company has replaced such Agent. Payment may be made by check. This coupon represents months' interest. Southwestern Public Service Company By [REVERSE OF COUPON] PAYING AGENTS B-8 NOTES TO EXHIBITS A AND B 1 If the Security is not to bear interest at a fixed rate per annum, insert a description of the manner in which the rate of interest is to be determined. If the Security is not to bear interest prior to maturity, so state. 2 If the method or currency of payment is different, insert a statement thereof. 3 If applicable. A restriction on redemption or refunding or any provision applicable to to its redemption other may be added. 4 If applicable. 5 If the Security is a Discounted Security, insert amount to be redeemed or method of calculating such amount. 6 If applicable. Also insert, if applicable, provisions for repayment of Securities at the option of the Securityholder. 7 If applicable. 8 If applicable. If convertible into securities other than Common Stock, insert appropriate summary. 9 If additional or different adjustment provisions apply so specify. 10 If applicable. Insert additional or different denomina- tions and terms as appropriate. 11 If different terms apply, insert a brief summary thereof. 12 If applicable. If additional or different covenants apply, insert a brief summary thereof. 13 If applicable. If different defeasance terms apply, insert a brief summary thereof. 14 If additional or different Events of Default apply, insert a brief summary thereof. 15 If the Security is a Discounted Security, set forth the amount due and payable upon an Event of Default. Note: U.S. tax law may require certain legends on Discounted and Bearer Securities. EXHIBIT C ASSIGNMENT FORM To assign this Security, fill in the form below: I or we assign and transfer this Security to _________________________________________ : : :_______________________________________: (Insert assignee's soc. sec. or tax I.D. no.) (Print or type assignee's name, address and zip code) and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him. Date: _______________ Your Signature: (Sign exactly as your name appears on the other side of this Security) C-1 EXHIBIT D CONVERSION NOTICE To convert this Security, check the box: _____ /____/ To convert only part of this Security, state the amount (must be in integral multiples of $1,000); $_____________________________ If you want the securities delivered upon conversion made out in another person's name, fill in the form below: (Insert other person's Social Security or Tax I.D. Number) ______________________________ ______________________________ ______________________________ ______________________________ (Print or type other person's name, address and zip code) Date: _________ Signature(s): ______________________________ ______________________________ (Sign exactly as your name(s) appear(s) on the other side of this Security) D-1 Signature(s) guaranteed by: ________________________________ (All signatures must be guaranteed by a member of a national securities exchange or of the National Association of Securities Dealers, Inc. or by a commercial bank or trust company located in the United States) D-2 EX-5 9 OPINION OF HINKLE, COX, EATON, COFFILED & HENSLEY, L.L.P. EXHIBIT 5 [LETTERHEAD OF HINKLE, COX, EATON, COFFIELD & HENSLEY] June 3, 1996 Securities and Exchange Commission 450 5th Street, N.W. Washington, DC 20549 Ladies and Gentlemen: We refer to the proposed issuance and sale of Preferred Stock, $1 par value (the "Preferred Stock") of Southwestern Public Service Company (the "Company") and/or Debt Securities (the "Debt Securities") consisting of First Mortgage Bonds of the Company, which may be in one or more series, and/or unsecured Debentures or Notes of the Company, which may be in one or more series, for which the Company is filing a Registration Statement on Form S-3 ("Registration Statement") with the Securities and Exchange Commission under the Securities Act of 1933, as amended ("Act"). We advise you that, in our opinion: (1) the Company is a corporation duly organized and existing under the laws of New Mexico; (2) upon (a) the Registration Statement becoming effective under the Act and the filing of a prospectus supplement relating to the Preferred Stock and/or Debt Securities under the Act, (b) the adoption of resolutions by the Board of Directors of the Company authorizing the issuance of the Preferred Stock and/or the Debt Securities, and (c) the due execution, authentication, and delivery of the Preferred Stock and/or the Debt Securities and the full payment therefor in accordance with such authorization of the Board of Directors of the Company, the New Mexico Public Service Commission, and the Corporation Commission of Oklahoma, the Preferred Stock will have been duly authorized, validly issued, and will be fully paid and non-assessable and/or the Debt Securities will have been legally issued and will be binding obligations of the Company, and (3) the statements as to matters of law and legal conclusions in the Registration Statement made in reliance upon us as experts are correct. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading "Experts" included in the prospectus forming part of the Registration Statement. Yours very truly, Hinckle, Cox, Eaton, Coffield & Hensley EX-15 10 LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION EXHIBIT 15 Southwestern Public Service Company We have reviewed, in accordance with standards established by the American Institute of Certified Public Accountants, the unaudited condensed consolidated interim financial information of Southwestern Public Service Company for the periods ended February 29, 1996 and February 28, 1995 and December 30, 1995 and 1994 as indicated in our reports dated April 12, 1996 and January 12, 1996, respectively; because we did not perform an audit, we expressed no opinion on that information. We are aware that our reports referred to above, which were included in your Quarterly Report on Form 10-Q for the quarters ended February 29, 1996 and November 30, 1995, are being used in this Registration Statement. We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statement prepared or certified by an accountant or reports prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCH LLP Dallas, Texas June 3, 1996 EX-23.B 11 CONSENT OF FOULSTON & SIEFKIN EXHIBIT 23(b) [LETTERHEAD OF FOULSTON & SIEFKIN] May 24, 1996 Southwestern Public Service Company SPS Tower Tyler at Sixth Street Amarillo, Texas 79170 Dear Sirs: In connection with the registration statement on Form S-3 relating to the registration of Debt Securities and Preferred Stock of Southwestern Public Service Company, we hereby consent to the references to our firm in the prospectus filed as a part of such registration statement and the documents incorporated by reference therein. Very truly yours, FOULSTON & SIEFKIN Topeka Office /s/James L. Grimes, Jr. ---------------------------- James L. Grimes, Jr. EX-23.C 12 CONSENT OF RAINEY, ROSS, RICE & BINNS EXHIBIT 23(c) [LETTERHEAD OF RAINEY, ROSS, RICE & BINNS] June 3, 1996 Southwestern Public Service Company P.O. Box 1261 Amarillo, TX 79170 Dear Sirs: In connection with the Registration Statement on Form S-3 relating to the registration of Debt Securities and Preferred Stock of Southwestern Public Service Company, we hereby consent to the reference to our firm in the Prospectus filed as a part of such Registration Statement and the documents incorporated by reference therein. Very truly yours, RAINEY, ROSS, RICE & BINNS By: /s/Hugh D. Rice ----------------------- Hugh D. Rice EX-23.D 13 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23(d) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Southwestern Public Service Company on Form S-3 of our report dated October 10, 1995, appearing in the Annual Report on Form 10-K of Southwestern Public Service Company for the year ended August 31, 1995, and to the reference to us as experts. DELOITTE & TOUCHE LLP Dallas, Texas June 3, 1996 EX-23.E 14 CONSENT OF KPMG PEAT MARWICK EXHIBIT 23(e) Independent Auditors' Consent ----------------------------- The Board of Directors Southwestern Public Service Company: We consent to the use of our report incorporated herein by reference and to the reference to our firm under the heading "Experts" in the prospectus. KPMG Peat Marwick LLP Fort Worth, Texas May 31, 1996 EX-24 15 POWERS OF ATTORNEY Exhibit 24 The undersigned, Robert D. Dickerson, Secretary and Treasurer of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwest- ern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern's and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, on behalf of Southwestern acting pursuant to resolutions of the Board of Directors duly adopted, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for Southwestern and in its name, place and stead to sign with or without the other in any and all capacities and file such registration statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises as fully to all intents and purposes might or could do, hereby ratifying and approving the acts of said attorneys- in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Robert D. Dickerson ----------------------- Robert D. Dickerson The undersigned, Bill D. Helton, Director, Chairman of the Board and Chief Executive Officer of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwest- ern's First Mortgage Bonds to be issued pursuant to the Inden- ture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern's and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the registration of South- western's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, on behalf of Southwestern acting pur- suant to resolutions of the Board of Directors duly adopted, hereby constitutes and appoints David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in- fact, with full power of substitution and resubstitution in the premises, for Southwestern and in its name, place and stead to sign with or without the other in any and all capacities and file such registration statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises as fully to all intents and purposes might or could do, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Bill D. Helton ------------------ Bill D. Helton The undersigned, David M. Wilks, Director, President and Chief Operating Officer of SOUTHWESTERN PUBLIC SERVICE COM- PANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registra- tion statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supple- mented and amended, between Southwestern's and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, on behalf of Southwestern acting pursuant to resolutions of the Board of Directors duly adopted, hereby con- stitutes and appoints Bill D. Helton, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for Southwestern and in its name, place and stead to sign with or without the other in any and all capacities and file such registration statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises as fully to all intents and purposes might or could do, hereby ratifying and approving the acts of said attorneys- in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ David M. Wilks ------------------ David M. Wilks The undersigned, Gene H. Bishop a Director of SOUTH- WESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern and Chemical Bank, as Trustee, (b) for the registration of South- western's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Gene H. Bishop ------------------ Gene H. Bishop The undersigned, C. Coney Burgess a Director of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the regis- tration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwest- ern and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the regis- tration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ C. Coney Burgess -------------------- C. Coney Burgess The undersigned, J. C. Chambers a Director of SOUTH- WESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern and Chemical Bank, as Trustee, (b) for the registration of South- western's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ J. C. Chambers ------------------ J. C. Chambers The undersigned, Danny H. Conklin a Director of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the regis- tration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwest- ern and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the regis- tration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Danny H. Conklin -------------------- Danny H. Conklin The undersigned, Giles M. Forbess a Director of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the regis- tration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwest- ern and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the regis- tration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Giles M. Forbess -------------------- Giles M. Forbess The undersigned, R. R. Hemminghaus a Director of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the regis- tration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwest- ern and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the regis- tration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ R. R. Hemminghaus --------------------- R. R. Hemminghaus The undersigned, Don Maddox a Director of SOUTHWEST- ERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico cor- poration, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern and Chemical Bank, as Trustee, (b) for the registration of South- western's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Don Maddox -------------- Don Maddox The undersigned, J. Howard Mock a Director of SOUTH- WESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern and Chemical Bank, as Trustee, (b) for the registration of South- western's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ J. Howard Mock ------------------ J. Howard Mock The undersigned, Shirley Bird Perry a Director of SOUTHWESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the regis- tration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwest- ern and Chemical Bank, as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par value, (c) for the regis- tration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Shirley Bird Perry ---------------------- Shirley Bird Perry The undersigned, Gary W. Wolf a Director of SOUTH- WESTERN PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to file with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended, registration statements (a) for the registration of Southwestern's First Mortgage Bonds to be issued pursuant to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as supplemented and amended, between Southwestern and Chemical Bank, as Trustee, (b) for the registration of South- western's Common Stock, $1 par value, (c) for the registration of Southwestern's Preferred Stock, $1 par value, and (d) for any other equity or long-term debt, hereby constitutes and appoints Bill D. Helton, David M. Wilks, Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth, Amarillo, Texas, and each of them Southwestern's attorney-in-fact, with full power of substitution and resubstitution in the premises, for him and in his name, place and stead to sign with or with- out the other in any and all capacities and file such registra- tion statements and any and all amendments and other documents related thereto, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the prem- ises as fully to all intents and purposes as he might or could do in person, hereby ratifying and approving the acts of said attorneys-in-fact. IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 31st day of January, 1996. /s/ Gary W. Wolf ---------------- Gary W. Wolf EX-25.A 16 FORM T-1 ------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 --------------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE ------------------------------ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________ ------------------------------ CHEMICAL BANK (Exact name of trustee as specified in its charter) New York 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 Park Avenue New York, New York 10017 (Address of principal executive offices) (Zip Code) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) ------------------------------ SOUTHWESTERN PUBLIC SERVICE COMPANY (Exact name of obligor as specified in its charter) New Mexico 75-0575400 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) Tyler at Sixth Amarillo, Texas 79101 (Address of principal executive offices) (Zip Code) ------------------------------ Debt Securities (Title of the indenture securities) ------------------------------- GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a)Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 33-84460, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Chemical Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 10th day of May, 1996. CHEMICAL BANK By /s/ Josiane De Sousa -------------------------- Josiane De Sousa Assistant Vice President Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF Chemical Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business December 31, 1995, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS in Millions Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin ................................. $ 6,390 Interest-bearing balances ......................... 2,544 Securities: .......................................... Held to maturity securities............................ 3,807 Available for sale securities.......................... 26,522 Federal Funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's: Federal funds sold ................................ 750 Securities purchased under agreements to resell ... 259 Loans and lease financing receivables: Loans and leases, net of unearned income $72,938 Less: Allowance for loan and lease losses 1,917 Less: Allocated transfer risk reserve .. 104 ------ Loans and leases, net of unearned income, allowance, and reserve ............................ 70,917 Trading Assets ........................................... 27,963 Premises and fixed assets (including capitalized leases)............................................ 1,355 Other real estate owned .................................. 21 Investments in unconsolidated subsidiaries and associated companies............................... 171 Customer's liability to this bank on acceptances outstanding ....................................... 1,166 Intangible assets ........................................ 433 Other assets ............................................. 4,822 ------ TOTAL ASSETS ............................................$147,120 ========= LIABILITIES Deposits In domestic offices ............................ $47,524 Noninterest-bearing ........................... $17,041 Interest-bearing ............................ 30,483 ------- In foreign offices, Edge and Agreement subsidiaries, and IBF's ...................... 37,690 Noninterest-bearing ............................$ 147 Interest-bearing ........................37,543 ------- Federal funds purchased and securities sold under agree- ments to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's Federal funds purchased ........................... 9,384 Securities sold under agreements to repurchase 2,166 Demand notes issued to the U.S. Treasury .............. 741 Trading liabilities ................................... 21,847 Other Borrowed money: With original maturity of one year or less ... 9,669 With original maturity of more than one year ....... 146 Mortgage indebtedness and obligations under capitalized leases ............................................. 14 Bank's liability on acceptances executed and outstanding 1,180 Subordinated notes and debentures ..................... 3,411 Other liabilities ..................................... 5,290 TOTAL LIABILITIES ..................................... 139,062 ------- EQUITY CAPITAL Common stock .......................................... 620 Surplus ............................................... 4,665 Undivided profits and capital reserves ................ 3,055 Net unrealized holding gains (Losses) on available-for-sale securities ...................... (290) Cumulative foreign currency translation adjustments ... 8 TOTAL EQUITY CAPITAL .................................. 8,058 ------- TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY CAPITAL ...................... $147,120 ==========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the in- structions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the in- structions issued by the appropriate Federal regulatory authority and is true and correct. WALTER V. SHIPLEY ) EDWARD D. MILLER )DIRECTORS WILLIAM B. HARRISON ) -----END PRIVACY-ENHANCED MESSAGE-----