Exhibit 4.22
CALCULATION AGENCY AGREEMENT
BETWEEN
PINNACLE WEST CAPITAL CORPORATION
AND
THE BANK OF NEW YORK
FLOATING RATE SENIOR NOTES DUE 2005
THIS AGREEMENT is made as of November 1, 2003, between PINNACLE WEST
CAPITAL CORPORATION, an Arizona corporation, whose principal executive office is
at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Corporation"), and THE
BANK OF NEW YORK, a New York banking corporation, whose principal corporate
trust office is at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with
any successor, called the "Calculation Agent").
W I T N E S S E T H :
WHEREAS, the Corporation proposes to issue and sell certain of its
securities designated as Floating Rate Senior Notes due 2005 (the "Notes"). The
Notes are to be issued under an Indenture dated as of December 1, 2000, between
the Corporation and The Bank of New York, as Trustee (the "Trustee"), as amended
and supplemented to the date hereof and as further amended and supplemented by
the Second Supplemental Indenture thereto dated as of November 1, 2003
(collectively, the "Indenture"). Terms used but not defined herein shall have
the meanings assigned to them in the Indenture and the Notes.
For the purpose of appointing an agent to calculate the Rate of
Interest on the Notes, the Corporation and The Bank of New York agree as
follows:
1. Upon the terms and subject to the conditions contained herein,
the Corporation hereby appoints the Calculation Agent as its Calculation Agent
and Calculation Agent hereby accepts such appointment as the Corporation's agent
for the purpose of calculating the Rate of Interest on the Notes. The
Calculation Agent shall determine the Rate of Interest in the manner and at the
times provided in the Second Supplemental Indenture and the Notes.
2. The Calculation Agent shall exercise due care to determine the
Rate of Interest on the Notes and shall communicate the same to the Corporation,
the Trustee, The Depository Trust Company and any paying agent identified to it
in writing promptly after each determination. The Calculation Agent will, upon
the request of the holder of any Note, provide the Rate of Interest then in
effect with respect to such Note and, if determined, the Rate of Interest with
respect to such Floating Rate Note which will become effective on the next
Interest Payment Date. No amendment to the
provisions of the Notes relating to the duties or obligations of the Calculation
Agent hereunder may become effective without the prior written consent of the
Calculation Agent, which consent shall not be unreasonably withheld.
3. The Calculation Agent accepts its obligations set forth
herein, upon the terms and subject to the conditions hereof, including the
following, to all of which the Corporation agrees:
(a) The Calculation Agent shall be entitled to such
compensation as may be agreed upon with the Corporation for all services
rendered by the Calculation Agent, and the Corporation promises to pay such
compensation and to reimburse the Calculation Agent for the out-of-pocket
expenses (including reasonable attorneys' and other professionals' fees and
expenses) incurred by it in connection with the services rendered by it
hereunder upon receipt of such invoices as the Corporation shall reasonably
require. The Corporation also agrees to indemnify the Calculation Agent for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the costs and expenses of defending against any claim
(regardless of who asserts such claim) of liability) incurred by the Calculation
Agent that arises out of or in connection with its accepting appointment as, or
acting as, Calculation Agent hereunder, except such as may result from the gross
negligence, willful misconduct or bad faith of the Calculation Agent or any of
its agents or employees. The Calculation Agent shall incur no liability and
shall be indemnified and held harmless by the Corporation for, or in respect of,
any actions taken, omitted to be taken or suffered to be taken in good faith by
the Calculation Agent in reliance upon (i) the opinion or advice of legal or
other professional advisors satisfactory to it or (ii) written instructions from
the Corporation. The Calculation Agent shall not be liable for any error
resulting from the use of or reliance on a source of information used in good
faith and with due care to calculate any Rate of Interest hereunder. The
provisions of this section shall survive the termination of this Agreement.
(b) In acting under this Agreement and in connection with
the Notes, the Calculation Agent is acting solely as agent of the Corporation
and does not assume any obligations to or relationship of agency or trust for or
with any of the owners or holders of the Notes.
(c) The Calculation Agent shall be protected and shall incur
no liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon the terms of the Notes, any notice,
direction, certificate, affidavit, statement or other paper, document or
communication reasonably believed by it to be genuine and to have been approved
or signed by the proper party or parties.
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(d) The Calculation Agent, its officers, directors,
employees and shareholders may become the owners of, or acquire any interest in,
any Notes, with the same rights that it or they would have if it were not the
Calculation Agent, and may engage or be interested in any financial or other
transaction with the Corporation as freely as if it were not the Calculation
Agent.
(e) Neither the Calculation Agent nor its officers,
directors, employees, agents or attorneys shall be liable to the Corporation for
any act or omission hereunder, or for any error of judgment made in good faith
by it or them, except in the case of its or their gross negligence, willful
misconduct or bad faith.
(f) The Calculation Agent may consult with counsel of its
selection and the advice of such counsel or any opinion of counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(g) The Calculation Agent shall be obligated to perform such
duties and only such duties as are herein specifically set forth, and no implied
duties or obligations shall be read into this Agreement against the Calculation
Agent.
(h) Unless herein otherwise specifically provided, any
order, certificate, notice, request, direction or other communication from the
Corporation made or given by it under any provision of this Agreement shall be
sufficient if signed by any officer of the Corporation.
(i) The Calculation Agent may perform any duties hereunder
either directly or by or through agents or attorneys, and the Calculation Agent
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(j) The Corporation will not, without first obtaining the
prior written consent of the Calculation Agent, make any change to the Notes in
the forms filed as exhibits to the Corporation's Form S-3 Registration Statement
No. 333-101457 by Form 8-K dated November 6, 2003 if such change would
materially and adversely affect the Calculation Agent's duties and obligations
under this Agreement.
4. (a) The Calculation Agent may at any time resign as
Calculation Agent by giving written notice to the Corporation of such intention
on its part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be earlier than 30 days
after the receipt of such notice by the Corporation, unless the Corporation
agrees to accept less notice. The
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Calculation Agent may be removed at any time by the filing with it of any
instrument in writing signed on behalf of the Corporation and specifying such
removal and the date when it is intended to become effective. Such resignation
or removal shall take effect upon the date of the appointment by the
Corporation, as hereinafter provided, of a successor Calculation Agent. If
within 30 days after notice of resignation or removal has been given, a
successor Calculation Agent has not been appointed, the Calculation Agent may,
at the expense of the Corporation, petition a court of competent jurisdiction to
appoint a successor Calculation Agent. A successor Calculation Agent shall be
appointed by the Corporation by an instrument in writing signed on behalf of the
Corporation and the successor Calculation Agent. Upon the appointment of a
successor Calculation Agent and acceptance by it of such appointment, the
Calculation Agent so succeeded shall cease to be such Calculation Agent
hereunder. Upon its resignation or removal, the Calculation Agent shall be
entitled to the payment by the Corporation of its compensation, if any is owed
to it, for services rendered hereunder and to the reimbursement of all
out-of-pocket expenses incurred in connection with the services rendered by it
hereunder and to the payment of all other amounts owed to it hereunder.
(b) Any successor Calculation Agent appointed hereunder
shall execute and deliver to its predecessor and to the Corporation an
instrument accepting such appointment hereunder, and thereupon such successor
Calculation Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as such
Calculation Agent hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(c) Any corporation into which the Calculation Agent may be
merged, or any corporation with which the Calculation Agent may be consolidated,
or any corporation resulting from any merger or consolidation or to which the
Calculation Agent shall sell or otherwise transfer all or substantially all of
its corporate trust assets or business shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. Notice of any such merger, consolidation or sale shall
forthwith be given to the Corporation and the Trustee.
5. Any notice required to be given hereunder shall be
delivered in person, sent by letter or telecopy or communicated by telephone
(subject, in the case of communication by telephone, to confirmation dispatched
within twenty-four hours by letter or by telecopy), in the case of the
Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
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Xxxxxxx 00000, telephone: (000) 000-0000, telecopy: (000) 000-0000, Attention:
Treasurer, in the case of The Bank of New York, to Corporate Trust
Administration, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone: (212)
000-0000, telecopy: (000) 000-0000 and, in the case of The Depository Trust
Company, to Manager Announcements, Dividend Department, The Depository Trust
Company, 00 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy: (212)
855-4555 or (000) 000-0000, or to any other address of which any party shall
have notified the others in writing as herein provided. Any notice hereunder
given by telephone, telecopy or letter shall be deemed to be received when in
the ordinary course of transmission or post, as the case may be, it would be
received.
6. This Agreement and your appointment as Calculation Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of laws principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
7. This Agreement may be executed by each of the parties
hereto in any number of counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same agreement.
8. In the event of any conflict relating to the rights or
obligations of the Calculation Agent in connection with the calculation of the
Rate of Interest on the Notes, the relevant terms of this Agreement shall govern
such rights and obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
PINNACLE WEST CAPITAL CORPORATION
By: Xxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Calculation Agent
By: Xxx Xxxxx
______________________________
Name: Xxx Xxxxx
Title: Vice President
