false
0000764622
0000764622
2024-06-05
2024-06-05
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
| |
Date
of report (Date of earliest event reported): |
June
5, 2024 |
|
Commission File
Number |
|
Exact Name of Each Registrant as specified in its
charter; State of Incorporation; Address; and
Telephone Number |
|
IRS Employer
Identification No. |
| 1-8962 |
|
PINNACLE
WEST CAPITAL CORPORATION |
|
86-0512431 |
| |
|
(an Arizona
corporation) |
|
|
| |
|
400 North
Fifth Street, P.O. Box 53999 |
|
|
| |
|
Phoenix
Arizona |
85072-3999 |
|
|
| |
|
(602)
250-1000 |
|
|
|
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
| |
|
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
| Common
Stock |
PNW |
The
New York Stock Exchange |
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the
Securities Exchange Act of 1934 (17 CFR §240.12b-2).
| |
Emerging growth
company |
¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The registrant hereby files the following Exhibits
to Registration Statement on Form S-3 (No. 333-277448, which became effective on February 28, 2024).
Pursuant to the requirements of the Securities
Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
PINNACLE WEST CAPITAL CORPORATION |
| |
(Registrant) |
| |
|
| Dated: June 10, 2024 |
By: |
/s/ Andrew Cooper |
| |
Andrew Cooper |
| |
Senior Vice President and |
| |
Chief Financial Officer |
Exhibit 1.1
PINNACLE WEST CAPITAL CORPORATION
$350,000,000 Floating Rate Senior Notes due 2026
UNDERWRITING AGREEMENT
June 5, 2024
Truist Securities, Inc.
3333 Peachtree Road NE, 11th Floor
Atlanta, Georgia 30326
Ladies and Gentlemen:
1. Introduction.
Pinnacle West Capital Corporation, an Arizona corporation (the “Company”), proposes to issue and sell to Truist Securities, Inc.
(the “Underwriter”) $350,000,000 principal amount of its Floating Rate Senior Notes due 2026 (the “Securities”)
to be issued under the Indenture dated as of December 1, 2000 (the “Original Indenture”) between the Company and
The Bank of New York Mellon Trust Company, N.A. (ultimate successor to The Bank of New York), as trustee (the “Trustee”),
as amended and supplemented by one or more Supplemental Indentures between the Company and the Trustee (each, a “Supplemental
Indenture”) (the Original Indenture as amended and supplemented by such Supplemental Indentures, including the Fifth Supplemental
Indenture to be dated as of June 10, 2024 between the Company and the Trustee (the “Most Recent Supplemental Indenture”),
referred to herein collectively as the “Indenture”). The Securities will bear interest at a variable rate to be reset
quarterly as set forth in the Indenture and as calculated by The Bank of New York Mellon Trust Company, N.A., as calculation agent (the
“Calculation Agent”), in accordance with a calculation agency agreement (the “Calculation Agency Agreement”)
between the Company and the Calculation Agent.
2. Representations
and Warranties of the Company. In connection with the offering of the Securities, the Company represents and warrants to, and agrees
with, the Underwriter as follows:
(a) A
registration statement on Form S-3 (Registration No. 333-277448) relating to the Securities has (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and
regulations of the Securities and Exchange Commission (the “Commission”) thereunder (the “Rules and Regulations”),
(ii) been filed with the Commission under the Act and (iii) become effective under the Act. As used in this Agreement:
(i) “Applicable
Time” means 3:10 p.m., New York City time, on the date hereof;
(ii) “Effective
Date” means the date as of which any part of the Registration Statement (as defined below) relating to the offering of the Securities
is deemed to have become effective under the Act in accordance with Rule 430B of the Rules and Regulations;
(iii) “Issuer
Free Writing Prospectus” means each “free writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Securities;
(iv) “Most
Recent Preliminary Prospectus” means the latest Preliminary Prospectus (as defined below), which, for purposes of this Agreement,
shall be the Preliminary Prospectus dated June 5, 2024;
(v) “Preliminary
Prospectus” means any preliminary prospectus relating to the Securities included in the Registration Statement or filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations (including, for purposes of this definition, any documents
incorporated by reference therein as of the Applicable Time), including any preliminary prospectus supplement relating to the Securities;
(vi) “Pricing
Disclosure Package” means, as of the Applicable Time, the Most Recent Preliminary Prospectus, together with each Issuer Free
Writing Prospectus set forth on Exhibit A hereto, if any, and the additional information set forth on Exhibit A
hereto, if any;
(vii) “Prospectus”
means the final prospectus relating to the Securities, including any prospectus supplement thereto relating to the Securities, as filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(viii) “Registration
Statement” means, collectively, the various parts of such registration statement, each as amended as of the Effective Date for
such part, including any Preliminary Prospectus or the Prospectus and all exhibits to such registration statement.
Any reference to any Preliminary Prospectus (including
the Most Recent Preliminary Prospectus) or the Prospectus shall be deemed to include any documents incorporated by reference therein pursuant
to Form S-3 under the Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to include any document filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), after the date of such Preliminary Prospectus or the Prospectus,
as the case may be, and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be. The Commission
has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness
of the Registration Statement, and, to the knowledge of the Company, no proceeding or examination for such purpose or pursuant to Section 8A
of the Act against the Company or related to the offering has been instituted or threatened by the Commission. The Commission has not
notified the Company of any objection to the use of the form of the Registration Statement.
(b) The
Company was at the time of the initial filing of the Registration Statement, has been at all relevant determination dates thereafter (as
provided in clause (2) of the definition of “well-known seasoned issuer” in Rule 405 of the Rules and Regulations),
is on the date hereof and will be on the Closing Date (as defined below) a “well-known seasoned issuer” (as defined in Rule 405
of the Rules and Regulations), including not having been an “ineligible issuer” (as defined in Rule 405 of the Rules and
Regulations) at any such time or date. The Registration Statement is an “automatic shelf registration statement” (as defined
in Rule 405 of the Rules and Regulations) and was filed not earlier than the date that is three years prior to the Closing Date.
The conditions for use of Form S-3, as set forth in the General Instructions thereto, have been satisfied.
(c) The
Registration Statement, on the Effective Date and the Closing Date, conformed and will conform in all material respects, and any amendments
to the Registration Statement filed after the date hereof and on or prior to the Closing Date will conform in all material respects, when
filed, to the requirements of the Act, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and
the Rules and Regulations. Any Preliminary Prospectus conformed or will conform, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations and on the Closing Date to
the requirements of the Act and the Rules and Regulations. The documents incorporated by reference in any Preliminary Prospectus
or the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects
to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, 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; provided, that no representation or warranty
is made (i) as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for inclusion therein, which information consists solely of the information
specified in Section 7(b), or (ii) with respect to any Statement of Eligibility (Form T-1) under the Trust Indenture Act
filed as an exhibit thereto.
(e) The
Prospectus will not, as of its date and on the Closing Date, 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;
provided, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the Company by the Underwriter specifically for inclusion therein, which
information consists solely of the information specified in Section 7(b).
(f) The
documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated
by reference therein will not, when filed with the Commission, 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.
(g) The
Pricing Disclosure Package will not, as of the Applicable Time, 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;
provided, that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package
in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for inclusion therein,
which information consists solely of the information specified in Section 7(b). The Company hereby consents to the use of the Pricing
Disclosure Package in connection with the sale and distribution of the Securities by the Underwriter.
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of
the Rules and Regulations), when considered together with the Pricing Disclosure Package as of the Applicable Time, 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; provided, that no representation or warranty is made as to information
contained in or omitted from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished
to the Company by the Underwriter specifically for inclusion therein, which information consists solely of the information specified in
Section 7(b).
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act and the Rules and
Regulations on the date of first use, and the Company has complied or will comply with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The Company has not, on or prior to the date hereof, made any offer
relating to the Securities that would constitute an Issuer Free Writing Prospectus, except as set forth on Exhibit B hereto.
The Company has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required
to be filed pursuant to the Rules and Regulations.
(j) The
Company has not distributed and, prior to the later of the Closing Date and completion of the distribution of the Securities, will not
distribute any offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus, the
Prospectus and each Issuer Free Writing Prospectus set forth on Exhibit B hereto or any Issuer Free Writing Prospectus to
which the Underwriter has consented in accordance with Section 4(e).
(k) The
Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona. The Company has
the requisite corporate power and corporate authority to conduct its business as such business is currently being conducted as described
in the Pricing Disclosure Package and is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions
(i) in which its ownership or lease of property or the conduct of its business requires such qualification and (ii) where the
failure to be so qualified would be reasonably likely to have a material adverse effect on the current or future consolidated financial
condition, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries, taken as a whole (a “Material
Adverse Effect”).
(l) The
Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company” or
an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of
1940, as amended (the “Investment Company Act”).
(m) The
financial statements of the Company referred to, incorporated by reference or contained in the Registration Statement and the Most Recent
Preliminary Prospectus present fairly in all material respects the financial position of the Company as of the dates shown and the results
of its operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent basis in all material respects with respect to the periods
involved as stated therein (except as disclosed therein). Any schedule included in the Registration Statement presents fairly in all material
respects the information required to be stated therein. The Company maintains systems of internal accounting controls and processes sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting
principles and (iii) assets are safeguarded from loss or unauthorized use that could have a material effect on the financial statements
of the Company.
(n) The
Indenture, other than the Most Recent Supplemental Indenture, has been duly qualified under the Trust Indenture Act, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles
of equity. The Most Recent Supplemental Indenture, establishing the terms of the Securities, has been duly authorized by the Company and,
when executed and delivered by the Company, will be duly qualified under the Trust Indenture Act and a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and general principles of equity. The Calculation Agency Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general principles
of equity.
(o) The
Securities to be issued and sold by the Company to the Underwriter hereunder have been duly and validly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and delivered against payment therefor as provided herein, will be
entitled to the benefits provided by the Indenture and will be valid and binding obligations of the Company, in each case enforceable
against the Company in accordance with their respective terms, subject to applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and general principles of equity, and will conform to the description of the Securities contained in
each of the Most Recent Preliminary Prospectus and the Prospectus.
(p) The
issue and sale of the Securities by the Company, the compliance by the Company with all of the provisions of this Agreement, the Indenture,
the Calculation Agency Agreement and the Securities and the performance by the Company of its obligations under this Agreement, the Indenture,
the Calculation Agency Agreement and the Securities will not (i) conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture or mortgage or other deed of trust, loan agreement or other agreement or
instrument to which the Company or Arizona Public Service Company (“APS”) is a party or by which the Company or APS
is bound or to which any of the property or assets of the Company or APS is subject, (ii) violate or result in a breach of the Articles
of Incorporation, as amended, or Bylaws, as amended, of the Company or APS, (iii) violate or result in a breach of any federal or
state law, rule or regulation applicable to the Company or APS (excluding state securities and blue sky laws) or any judgment, order
or decree of any court or governmental agency or body having jurisdiction over the Company or APS or any of their properties or (iv) result
in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the
Company or APS, except, in the case of clause (i) and clause (iii) above, for any such conflict, breach or violation that is
not reasonably likely to have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of
or with any such court or federal or state governmental authority is required for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement, the Calculation Agency Agreement or the Indenture, except (x) such
consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection
with the purchase and distribution of the Securities by the Underwriter, (y) the qualification of the Indenture under the Trust Indenture
Act and (z) the registration under the Act of the Securities, and in the case of clause (y) and clause (z) above, such
qualification and registration to be obtained on or prior to the Closing Date.
(q) This
Agreement has been duly authorized, executed and delivered by the Company.
(r) Except
as disclosed in the Pricing Disclosure Package and except with respect to applicable foreign, federal, state or local laws and regulations
and any decision or order of any governmental agency or body or any court relating to the environment, the effect of the environment on
human health or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), which are
addressed solely by Section 2(bb), each of the Company and APS has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its respective business as now conducted, except where the failure to have any such license,
authorization, consent or approval is not reasonably likely to have a Material Adverse Effect and, as to APS, except that (i) APS
from time to time makes minor extensions of its system prior to the time a related franchise, certificate, license, consent or permit
is procured, (ii) from time to time communities already being served by APS become incorporated and considerable time may elapse
before a franchise, license, consent or permit is procured, (iii) certain franchises, licenses, consents or permits may have expired
prior to the renegotiation thereof, (iv) under Arizona Revised Statutes Section 40-281.B, APS may extend distribution facilities
into areas contiguous to its certificates of convenience and necessity not already served by another electric utility without extending
its existing certificates or obtaining new certificates, (v) certain minor defects and exceptions may exist that, individually and
in the aggregate, are not deemed material and (vi) no representation is made regarding the geographical scope of any franchise, certificate,
license, consent or permit that is not specific as to its geographical scope.
(s) Neither
the Company nor any of its subsidiaries or, to the knowledge of the Company, any of their respective affiliates over which any of the
foregoing exercises management control (each, a “Controlled Affiliate”) or any director or officer of the Company,
any of its subsidiaries or any of their respective Controlled Affiliates (each, a “Manager”) is a Person (as defined
in Section 2(t)): (i) listed in the annex to the Executive Order (as defined in Section 2(u)) or identified pursuant to
Section 1 of the Executive Order; (ii) that is owned or controlled by, or acting for or on behalf of, any Person listed in the
annex to the Executive Order or identified pursuant to the provisions of Section 1 of the Executive Order; (iii) with whom the
Underwriter is prohibited from dealing or otherwise engaging in any transaction by any terrorism or anti-laundering law, including the
Executive Order; (iv) who commits, threatens, conspires to commit, or support “terrorism” as defined in the Executive
Order; (v) who is named as a “Specially designated national or blocked person” on the most current list published by
the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) at its official website,
at https://www.treasury.gov/ofac/downloads/sdnlist.pdf or any replacement website or other replacement official publication of such list;
or (vi) who is owned or controlled by a Person listed above in clause (iii) or (v), and the Company, its subsidiaries and, to
the knowledge of the Company, such Controlled Affiliates are in compliance with all applicable orders, rules and regulations of OFAC.
(t) Neither
the Company nor any of its subsidiaries or, to the knowledge of the Company, any of their respective Controlled Affiliates or Managers:
(i) is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by OFAC
and any similar economic or financial sanctions or trade embargoes of the type described in Section 2(s), Section 2(t), Section 2(u) and
Section 2(v) and imposed, administered or enforced from time to time by the United States government, including the United States
Department of State (collectively, the “Sanctions”); (ii) is owned or controlled by, or acts on behalf of, any
individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture,
limited liability company or other entity, or a government or any political subdivision or agency thereof (each, a “Person”)
that is targeted by United States or multilateral economic or trade sanctions currently in force; (iii) is, or is owned or controlled
by, a Person who is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions,
including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other
Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea Region and the non-government controlled areas of the
Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Sudan and Syria; or (iv) is named, identified or described
on any list of Persons with whom United States Persons may not conduct business, including any such blocked persons list, designated nationals
list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other such lists published or maintained
by the United States, including OFAC, the United States Department of Commerce or the United States Department of State.
(u) None
of the Company’s or its subsidiaries’ assets constitute property of, or are beneficially owned, directly or indirectly, by
any Person that is the target of Sanctions, including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. (the “Trading With the Enemy Act”),
any of the foreign assets control regulations of the Treasury (31 C.F.R., Subtitle B, Chapter V, as amended) (the “Foreign Assets
Control Regulations”) or any enabling legislation or regulations promulgated thereunder or executive order relating thereto
(which includes, without limitation, (i) Executive Order No. 13224, effective as of September 24, 2001, and relating to
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001))
(the “Executive Order”) and (ii) the USA PATRIOT Act), if the result of such ownership would be that the Securities
would be in violation of law (“Embargoed Person”). No Embargoed Person has any interest of any nature whatsoever in
the Company if the result of such interest would be that the issuance of the Securities would be in violation of law. The Company has
not engaged in business with Embargoed Persons if the result of such business would be that the issuance of the Securities would be in
violation of law. The Company will not, directly or indirectly, use the proceeds of the Securities, or contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other Person, (1) to fund any activities or business of or with any Person,
or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (2) in
any other manner that would result in a violation of Sanctions or laws, rules and regulations of any jurisdiction applicable to the
Company or its subsidiaries from time to time concerning or relating to bribery or corruption (collectively, the “Anti-Corruption
Laws”) by any Person (including any Person holding the Securities). Neither the Company nor any Controlled Affiliate (A) is
or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets
Control Regulations or (B) to the knowledge of the Company, engages in any dealings or transactions, or is otherwise associated,
with any such “blocked person”. For purposes of determining whether or not a representation is true under this Section 2(u),
the Company shall not be required to make any investigation into (x) the ownership of publicly traded stock or other publicly traded
securities or (y) the beneficial ownership of any collective investment fund.
(v) Neither
the Company nor any of its subsidiaries or, to the knowledge of the Company and its subsidiaries, any of their Managers, has failed to
comply with the United States Foreign Corrupt Practices Act, as amended from time to time, or any other applicable anti-bribery laws or
Anti-Corruption Laws, and it and they have not made, offered, promised or authorized, and will not make, offer, promise or authorize,
whether directly or indirectly, any payment, of anything of value to (i) an executive, official, employee or agent of a governmental
department, agency or instrumentality, (ii) a director, officer, employee or agent of a wholly or partially government-owned or -controlled
company or business, (iii) a political party or official thereof, or candidate for political office or (iv) an executive, official,
employee or agent of a public international organization (e.g., the International Monetary Fund or the World Bank) (each, a “Government
Official”) while knowing or having a reasonable belief that all or some portion will be used for the purpose of: (x) influencing
any act, decision or failure to act by a Government Official in his or her official capacity, (y) inducing a Government Official
to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity or (z) securing
an improper advantage, in each case in order to obtain, retain or direct business.
(w) The
interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus
fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and
guidelines applicable thereto in all material respects. The Company’s disclosure controls and procedures provide reasonable assurance
that the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(x) APS
is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona. All of the issued shares
of capital stock of APS have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by
the Company, free and clear of all liens, encumbrances, equities and claims, other than liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been made.
(y) Since
the respective dates as of which information is given in the Pricing Disclosure Package, there has not been any material adverse change
in or affecting the consolidated financial condition, shareholders’ equity or results of operations of the Company and its consolidated
subsidiaries, taken as a whole, other than as set forth or contemplated in the Pricing Disclosure Package.
(z) Other
than as set forth in the Pricing Disclosure Package, there are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party that, if determined adversely to the Company or any of its subsidiaries, would be reasonably likely to
have a Material Adverse Effect, and, to the Company’s knowledge, no such proceedings are threatened by governmental authorities
or others.
(aa) To
the extent material to the Company and APS, taken as a whole, they have good and marketable title to the real and personal property owned
by them, and any real properties and buildings held under lease by the Company or APS are held under valid and enforceable leases, in
each case free and clear of all liens, encumbrances and defects except such as are described in the Pricing Disclosure Package or such
as do not and are not reasonably likely to have a Material Adverse Effect; provided, however, that (i) this representation and warranty
as to leases shall not extend to property held under lease from the Navajo Nation or under easement from the federal government, (ii) this
representation and warranty shall not extend to easements and rights-of-way from Indian tribes for lines and systems and (iii) this
representation and warranty shall not extend to the potential effect on any material lease of a bankruptcy filing of any lessor, certain
issues with respect to all of which are set forth in the Company’s periodic reports filed with the Commission under the Exchange
Act.
(bb) Except
as disclosed in the Pricing Disclosure Package, the operations and properties of the Company and APS comply with all Environmental Laws,
except where the necessity of compliance therewith is being contested in good faith by appropriate proceedings or such non-compliance
with Environmental Laws is not reasonably likely to have a Material Adverse Effect.
(cc) There
are no contracts, agreements or understandings between the Company and any person or entity granting such person or entity the right to
require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned
by such person or entity or to require the Company to include such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act.
(dd) The
Company is a “holding company”, as such term is defined in the Public Utility Holding Company Act of 2005 (the “PUHCA”).
No approval, authorization or consent is required under the PUHCA in connection with the issuance or sale of the Securities.
(ee) Except
as disclosed in the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company has no knowledge of any security
breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer
systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers and vendors and any
third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”),
except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries
have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security
breach or other compromise to their IT Systems and Data, except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company and its subsidiaries are presently in compliance with all applicable laws and statutes,
all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, all internal policies
and all contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and
Data from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Company and its subsidiaries have implemented backup and disaster recovery technology
consistent with industry standards and practices. The Company and its subsidiaries have policies and procedures in place designed to ensure
the integrity and security of the IT Systems and Data and comply with such policies and procedures in all material respects.
Any certificate signed by an officer of the Company and delivered to
the Underwriter (or counsel for the Underwriter) in connection with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby on the date of such certificate, to the Underwriter.
3. Purchase,
Sale and Delivery of Securities. On the basis of the representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, $350,000,000 principal amount of the Securities at a purchase price of 99.775% of the principal amount thereof. The time and
date of delivery and payment with respect to the Securities shall be 10:00 a.m., New York City time, on June 10, 2024 or such other
time and date as the Underwriter and the Company may agree upon in writing (the “Closing Date”). It is understood that
the Underwriter will offer the Securities for sale as set forth in the Pricing Disclosure Package and the Prospectus.
The Securities to be purchased by the Underwriter
on the Closing Date shall be in global form, registered in the name of Cede & Co. and shall be delivered by or on behalf of the
Company to the Underwriter, through the facilities of The Depository Trust Company (“DTC”), for the account of the
Underwriter, against payment by or on behalf of the Underwriter of the purchase price therefor by wire transfer of federal (same-day)
funds to the account specified by the Company to the Underwriter at least 24 hours in advance. The Company will cause any certificates
representing the Securities to be made available for checking and packaging at least 24 hours prior to the Closing Date with respect thereto
at the office of DTC or its designated custodian.
4. Covenants
of the Company. The Company covenants and agrees with the Underwriter that, with respect to the offering of the Securities:
(a) The
Company will file any Preliminary Prospectus and the Prospectus with the Commission pursuant to and in accordance with Rule 424(b) of
the Rules and Regulations. The Company will prepare a final term sheet, containing solely a description of the Securities, in a form
approved by the Underwriter and will file such final term sheet pursuant to Rule 433(d) of the Rules and Regulations within
the time required by such Rule. The Company will file all other material required to be filed by the Company with the Commission pursuant
to Rule 433(d) of the Rules and Regulations.
(b) The
Company will advise the Underwriter promptly of any proposed amendment or supplementation of the Registration Statement, any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus that it proposes to make between the date hereof and the Closing Date (other
than any periodic report to be filed by the Company under the Exchange Act during such period). The Company will provide the Underwriter
and its counsel with a draft of such amendment or supplement prior to filing and will reasonably consider any changes proposed in writing
by counsel for the Underwriter based on legal grounds. The Company will also advise the Underwriter of the institution by the Commission
of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus or of the initiation or threatening of any proceeding or examination for such purpose or pursuant to Section 8A of the
Act against the Company or related to the offering known to the Company, or of any notice from the Commission objecting to the use of
the form of the Registration Statement or any post-effective amendment thereto and will use its best efforts to prevent the issuance of
any such stop order or of any order preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus
and to obtain as soon as possible its lifting, if issued.
(c) The
Company will pay the applicable Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of
the Rules and Regulations.
(d) If,
at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such
requirement can be satisfied pursuant to Rule 172 of the Rules and Regulations), any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary
at any time to amend or supplement the Registration Statement or the Prospectus to comply with applicable law, the Company promptly will
(i) notify the Underwriter of such event and (ii) prepare and file with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such compliance. Neither the Underwriter’s consent to, nor the
Underwriter’s delivery of, any such amendment or supplement shall constitute a waiver of any conditions set forth in Section 6.
(e) The
Company will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Underwriter except as set forth on Exhibit B hereto.
(f) The
Company will retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant
to the Rules and Regulations. If, at any time when a prospectus relating to the Securities is required to be delivered under the
Act (including in circumstances where such requirement can be satisfied pursuant to Rule 172 of the Rules and Regulations),
any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict
with the information in the Registration Statement, the Most Recent Preliminary Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, the Company will notify the Underwriter and will amend or supplement such Issuer Free Writing Prospectus
to correct such conflict, statement or omission and the Company will comply with any filing requirements applicable to such amended or
supplemented Issuer Free Writing Prospectus in accordance with the Rules and Regulations.
(g) As
soon as practicable, but not later than 18 months after the date hereof, the Company will make generally available to its security holders
an earning statement or statements (which need not be audited) covering a period of at least 12 months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), which will satisfy the provisions
of Section 11(a) of the Act and the Rules and Regulations.
(h) The
Company will furnish to the Underwriter such copies of the Registration Statement (including one copy of the Registration Statement for
the Underwriter and for the counsel for the Underwriter, which is signed and includes all exhibits), any Preliminary Prospectus, the Prospectus
and any Issuer Free Writing Prospectus, and all amendments or supplements to such documents, as may be reasonably requested by the Underwriter;
provided, that the Company will not be required to deliver documents filed by it pursuant to the Exchange Act and thereby incorporated
by reference in the Prospectus.
(i) The
Company will arrange or cooperate in arrangements for the qualification of the Securities for sale under the securities or blue sky laws
of such jurisdictions as the Underwriter designates and will continue such qualifications in effect so long as required for the distribution
of the Securities; provided, that the Company shall not be required to qualify as a foreign corporation in any state, to consent
to service of process in any state other than with respect to claims arising out of the offering or sale of the Securities or to meet
other requirements deemed by it to be unduly burdensome.
(j) The
Company agrees to pay all costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein, as may, in each case, be reasonably requested for use in connection with the offering and sale of the
Securities; (iii) any rating of the Securities by investment rating agencies; (iv) the printing (or reproduction) and delivery
of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with
the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating
to such registration and qualification); (vi) the transportation and other expenses incurred by or on behalf of Company representatives
(other than the Underwriter) in connection with presentations to prospective purchasers of the Securities; and (vii) all other costs
and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that, except as provided
in this Section 4(j), Section 7 and Section 8, the Underwriter will pay all of its own costs and expenses.
(k) Prior
to the Closing Date, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act relating to, any additional debt securities of the Company (or warrants to
purchase debt securities of the Company) that mature more than one year after the Closing Date and that are substantially similar to the
Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written
consent of the Underwriter.
(l) During
the period of two years after the date hereof, the Company will furnish to the Underwriter (i) as soon as practicable after the end
of each fiscal year, a balance sheet and statements of income and changes in common stock equity of the Company as at the end of and for
such year, all in reasonable detail and certified by independent registered public accountants, and (ii) (A) as soon as practicable
after the end of each quarterly fiscal period (except for the last quarterly fiscal period of each fiscal year), a balance sheet and statement
of income of the Company as at the end of and for such period, all in reasonable detail and certified by a principal financial or accounting
officer of the Company, (B) as soon as available, a copy of each report of the Company filed with the Commission under the Exchange
Act, and (C) from time to time, such other information concerning the Company as may reasonably be requested. So long as the Company
has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries
are consolidated. Information required to be delivered pursuant to this provision will be deemed to have been delivered on the date on
which the information has been posted on the Company’s website at www.pinnaclewest.com or on the Commission’s public website,
or at any other website accessible by the Underwriter and identified in a notice sent by the Company to the Underwriter.
(m) If,
immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration
Statement, any of the Securities remain unsold by the Underwriter, the Company will, prior to the Renewal Deadline, file, if it has not
already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities (in which case the Company
will provide the Underwriter and counsel for the Underwriter with a draft of such automatic shelf registration statement prior to filing
and will reasonably consider any changes proposed in writing by counsel for the Underwriter based on legal grounds). If at the Renewal
Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline,
if it has not already done so, file a new shelf registration statement relating to the Securities (in which case the Company will provide
the Underwriter and counsel for the Underwriter with a draft of such new shelf registration statement prior to filing and will reasonably
consider any changes proposed in writing by counsel for the Underwriter based on legal grounds), and will use its best efforts to cause
such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration
statement relating to the Securities. References in this Section 4(m) to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement, as the case may be.
(n) If
at any time when Securities remain unsold by the Underwriter the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of
the Rules and Regulations or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company
will (i) promptly notify the Underwriter, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Securities (in which case the Company will provide the Underwriter and counsel for the Underwriter with a
draft of such new registration statement or post-effective amendment prior to filing and will reasonably consider any changes proposed
in writing by counsel for the Underwriter based on legal grounds), (iii) use its best efforts to cause such registration statement
or post-effective amendment to be declared effective and (iv) promptly notify the Underwriter of such effectiveness. The Company
will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated
in the registration statement that was the subject of the notice pursuant to Rule 401(g)(2) of the Rules and Regulations
or for which the Company has otherwise become ineligible. References in this Section 4(n) to the Registration Statement shall
include such new registration statement or post-effective amendment, as the case may be.
(o) The
Company shall use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in
the Prospectus under the caption “Use of Proceeds”.
5. Underwriter
Free Writing Prospectus. The Underwriter hereby agrees that, except for one or more term sheets containing the information set forth
or referred to in Exhibit A hereto, it will not use, authorize use of, refer to or participate in the use of any “free
writing prospectus”, as defined in Rule 405 of the Rules and Regulations (which term includes use of any written information
furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued
by the Company), other than (i) one or more term sheets relating to the Securities that are not Issuer Free Writing Prospectuses
and that contain preliminary terms of the Securities and related customary information not inconsistent with the final term sheet filed
by the Company pursuant to Section 4(a), (ii) a free writing prospectus that is not an Issuer Free Writing Prospectus and is
not required to be filed with the Commission, (iii) a free writing prospectus that contains no “issuer information” (as
defined in Rule 433(h)(2) of the Rules and Regulations) that was not included (including through incorporation by reference)
in any Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (iv) any Issuer Free Writing Prospectus prepared
pursuant to Section 4(a) or Section 4(e) or (v) any free writing prospectus prepared by the Underwriter and approved
by the Company in advance in writing.
6. Conditions
of the Obligations of the Underwriter. The obligations of the Underwriter to purchase and pay for the Securities on the Closing Date
will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) On
the date hereof, the Underwriter shall have received a letter in a form reasonably satisfactory to the Underwriter, dated the date hereof,
of Deloitte & Touche LLP, confirming that they are independent registered public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and the applicable published rules and regulations of the Public Company
Accounting Oversight Board (“PCAOB”) and stating to the effect that:
(i) in
their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Pricing
Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they
have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information
as described in PCAOB AU 722, Interim Financial Information, on any unaudited financial statements included in the Pricing Disclosure
Package and the Prospectus;
(iii) on
the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the
unaudited financial statements, if any, included in the Pricing Disclosure Package and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally
accepted accounting principles;
(B) if
any unaudited “capsule” information is contained in the Pricing Disclosure Package or the Prospectus, the unaudited operating
revenues, gross income, net income and net income per share amounts or other amounts constituting such “capsule” information
and described in such letter do not agree with the corresponding amounts set forth in the unaudited financial statements or were not determined
on a basis substantially consistent with that of the corresponding amounts in the audited statements of income;
(C) at
the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business
days prior to the date of such letter, there was any change in the amounts of common stock, redeemable preferred stock or non-redeemable
preferred stock of the Company or any increase in long-term debt of the Company or, at the date of the most recent available unaudited
financial statements, there was any decrease in net current assets or common stock equity as compared with amounts shown in the most recent
financial statements included in the Pricing Disclosure Package and the Prospectus, except in all cases for changes, increases or decreases
that result from the declaration or payment of dividends; or
(D) for
the period from the closing date of the latest income statement included in the Pricing Disclosure Package and the Prospectus to the closing
date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period
of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Pricing
Disclosure Package and the Prospectus, in the amounts of total revenues or net income;
except in all cases set forth in clause (C) and clause
(D) above for changes, increases or decreases that the Pricing Disclosure Package and the Prospectus disclose have occurred or may
occur or that are described in such letter; and
(iv) they
have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in
the Pricing Disclosure Package and the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the
Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Pricing Disclosure Package and the Prospectus shall be deemed included in the Pricing Disclosure Package and the
Prospectus for purposes of this Section 6(a).
(b) Any
Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 4(a). The Company
shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus. No stop order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been
issued, no proceeding or examination for such purpose or pursuant to Section 8A of the Act against the Company or related to the
offering shall have been initiated or threatened by the Commission and no order directed to the adequacy of any document incorporated
by reference in any Preliminary Prospectus or the Prospectus shall have been issued. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall have been complied with or resolved to the reasonable satisfaction
of the Underwriter. The Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(c) Subsequent
to the execution of this Agreement and prior to the Closing Date, (i) there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the financial position, business or properties of the Company and its subsidiaries
taken as a whole that, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Securities, (ii) there
shall not have occurred a suspension or material limitation in trading in securities generally on the New York Stock Exchange or in the
Company’s securities, (iii) there shall not have occurred, in respect of the Company’s securities, any downgrading or
withdrawal, nor shall any notice have been given in respect of the Company’s securities of any intended or potential downgrading
or withdrawal or of any review for a possible change that does not indicate the direction of the possible change, and there shall have
been no public announcement that any of the Company’s securities have been placed on CreditWatch or Watchlist or under any similar
surveillance or review, in each case with negative implications, by S&P Global Ratings, a division of S&P Global Inc., Moody’s
Investors Service, Inc. or Fitch, Inc., (iv) there shall not have occurred a general moratorium on commercial banking activities
in New York declared by either federal or State of New York authorities, (v) there shall not have occurred any material disruption
of commercial banking, settlements of securities or clearance services in the United States and (vi) there shall not have occurred
any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment of the Underwriter, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
If the Underwriter elects not to purchase the Securities as a result of the occurrence of one of the events specified in this Section 6(c),
the Underwriter will promptly notify the Company.
(d) The
Underwriter shall have received an opinion of the General Counsel of the Company, dated the Closing Date, to the effect that:
(i) (A) the
Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona, with the requisite
corporate power and corporate authority to conduct its business as such business is currently being conducted as described in each of
the Pricing Disclosure Package and the Prospectus; the opinions expressed above in this clause (A) as to the due organization and
good standing of the Company are based solely on such counsel’s review of a certificate of the Arizona Corporation Commission, a
copy of which has been made available to the Underwriter and its counsel, and such counsel’s opinions with respect to such matters
are rendered as of the date of such certificate and are limited accordingly; and (B) APS is a corporation duly organized, validly
existing and in good standing under the laws of the State of Arizona, and APS is duly qualified as a foreign corporation to do business,
and is in good standing, in the States of California and New Mexico; the opinions expressed above in this clause (B) as to the due
organization, good standing and qualification of APS are based solely on such counsel’s review of certain certificates of governmental
authorities described in such opinion letter, copies of which have been made available to the Underwriter and its counsel, and such counsel’s
opinions with respect to such matters are rendered as of the date of such certificates and are limited accordingly;
(ii) the
Securities have been duly authorized by all requisite corporate action on the part of the Company and have been duly executed, issued
and delivered; the Securities constitute valid and legally binding obligations of the Company entitled to the benefits provided by the
Indenture; and the Securities conform in all material respects to the description thereof in each of the Pricing Disclosure Package and
the Prospectus;
(iii) the
Indenture has been duly qualified under the Trust Indenture Act, has been duly authorized by all requisite corporate action on the part
of the Company and has been duly executed and delivered by the Company; and each of the Indenture and the Calculation Agency Agreement
constitutes a valid, binding and enforceable obligation of the Company;
(iv) the
execution, delivery and performance of this Agreement by the Company have been duly authorized by all requisite corporate action on the
part of the Company, and this Agreement has been duly executed and delivered by the Company;
(v) the
issue and sale of the Securities and the performance by the Company of its obligations under this Agreement, the Indenture, the Calculation
Agency Agreement and the Securities do not violate or result in a breach of (a) the Articles of Incorporation, as amended, or Bylaws,
as amended, of the Company, (b) any judgment, order or decree of any court or governmental agency or body having jurisdiction over
the Company or (c) any federal or state law, rule or regulation applicable to the Company (excluding state securities and blue
sky laws), except, in the case of clause (b) and clause (c) above, for any such violation or breach that is not reasonably likely
to have a Material Adverse Effect;
(vi) the
issue and sale of the Securities and the performance by the Company of its obligations under this Agreement, the Indenture, the Calculation
Agency Agreement and the Securities will not cause a breach or default under (a) any agreement to which the Company is a party or
by which the Company is bound that is filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2023, the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024 or the
Company’s Current Reports on Form 8-K filed since the date of filing of the above-referenced Annual Report on Form 10-K,
in each case pursuant to Item 601(b)(4), Item 601(b)(10) or Item 601(b)(99) of Regulation S-K or (b) any other indenture
or mortgage or other deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject, except, in the case of this clause (b), for any such breach
or default that is not reasonably likely to have a Material Adverse Effect (it being understood that such counsel need express no opinion
as to any breach or default (x) arising under or based upon any covenant of a financial or numerical nature or requiring computation
or (y) otherwise not ascertainable from the face of any such agreement, this Agreement, the Calculation Agency Agreement or the Indenture;
and it being further understood that the opinion in clause (b) is based solely on such counsel’s personal knowledge after consultation
with other lawyers under such counsel’s supervision who are responsible for legal review of contracts);
(vii) no
consent, approval, authorization, order, registration or qualification of or with any federal or state governmental authority is required
for the issue and sale of the Securities, the execution and delivery of the Indenture or the Calculation Agency Agreement or the consummation
by the Company of the transactions contemplated by this Agreement, except (a) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or blue sky laws, as to which laws such counsel shall not be required to express
an opinion, (b) the qualification of the Indenture under the Trust Indenture Act and (c) the registration under the Act of the
Securities;
(viii) the
statements set forth in each of the Pricing Disclosure Package and the Prospectus under the captions “Description Of Pinnacle West
Unsecured Debt Securities” and “Description Of The Notes”, insofar as they purport to constitute a summary of the terms
of the Securities, the Calculation Agency Agreement and the Indenture, are accurate and complete in all material respects;
(ix) the
Company is not, and, after giving effect to the offering and sale of the Securities, will not be, an “investment company”,
as such term is defined in the Investment Company Act;
(x) to
such counsel’s knowledge, there are no legal or governmental proceedings required to be described in the Prospectus that are not
described as required, nor any contracts or documents of a character required to be described in the Registration Statement, the Pricing
Disclosure Package, or the Prospectus or to be filed as exhibits to the Registration Statement that are not described and filed as required
(it being understood that such counsel need express no opinion as to the statements of eligibility and qualification of the Trustee under
the Trust Indenture Act);
(xi) the
Registration Statement was automatically effective upon filing; any required filing of each prospectus relating to the Securities (including
the Prospectus) pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period
required by Rule 424(b) of the Rules and Regulations; all material required to be filed by the Company pursuant to Rule 433(d) of
the Rules and Regulations has been filed with the Commission within the applicable time period prescribed for such filing by Rule 164
of the Rules and Regulations and Rule 433 of the Rules and Regulations (it being understood that such counsel need express
no opinion as to any “free writing prospectus”, as defined in Rule 405 of the Rules and Regulations, that the Underwriter
uses, authorizes the use of, refers to or participates in the use of, except for a “free writing prospectus” that is (a) permitted
by Section 5 of this Agreement and (b) required to be filed by the Company pursuant to Rule 433(d) of the Rules and
Regulations); and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice
that would prevent its use has been issued and no proceedings for that purpose have been instituted or threatened; and
(xii) the
Registration Statement, as of the time it became effective, and the Prospectus, as of the date of such counsel’s opinion, in each
case as amended by the Company’s Current Report on Form 8-K to be filed with the Commission on or prior to the Closing Date,
with respect to the issuance and sale of the Securities, and other than financial statements and schedules and other financial, statistical
or accounting data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion,
appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the Rules and Regulations;
and, although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements or other information
contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, except as expressly provided in Section 6(d)(ii) and
Section 6(d)(viii), and has not independently verified any of such statements or other information, such counsel has no reason to
believe that (in each case excluding (a) financial statements and schedules and other financial, statistical or accounting data included
or incorporated by reference therein or omitted therefrom, (b) the Statement of Eligibility (Form T-1) of the Trustee under
the Indenture, (c) the information contained in the Pricing Disclosure Package and the Prospectus under the caption “Description
Of Pinnacle West Unsecured Debt Securities − Global Securities”, (d) statements in or omissions from the Registration
Statement, the Pricing Disclosure Package or the Final Prospectus based upon written information furnished to the Company by the Underwriter
specifically for use therein and (e) the information contained in the Pricing Disclosure Package and the Prospectus under the caption
“Certain Material United States Federal Income Tax Consequences”, as to all of which such counsel need express no opinion):
(A) the
Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not misleading;
(B) the
Pricing Disclosure Package, as of the Applicable Time, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
or
(C) the
Prospectus, as of its date or at the date of such counsel’s opinion, included or includes any untrue statement of a material fact
or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving such opinion, (x) such counsel shall
state that such opinion is limited to the federal laws of the United States and the law of the State of Arizona, (y) such counsel
may rely to the extent such counsel deems appropriate upon the opinion of Pillsbury Winthrop Shaw Pittman LLP, counsel for the Underwriter,
as to all matters governed by the law of the State of New York and (z) such counsel may state that such counsel’s opinions
are subject to certain customary assumptions and qualifications acceptable to the Underwriter and its counsel.
(e) The
Underwriter shall have received from Pillsbury Winthrop Shaw Pittman LLP, counsel for the Underwriter, an opinion or opinions, dated the
Closing Date, with respect to such matters as they may reasonably require, and the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon such matters.
(f) The
Underwriter shall have received a certificate of the President or any Vice President and a principal financial or accounting officer of
the Company, dated the Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Company in this Agreement are true and correct as of the Closing Date, or, where
applicable, as of such other date specified in such representation and warranty, (ii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to such Closing Date, (iii) no
stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings or examinations for that purpose
or pursuant to Section 8A of the Act against the Company or related to the offering have been instituted or are contemplated by the
Commission and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any
post-effective amendment thereto and (iv) subsequent to the date of the most recent financial statements in the Most Recent Preliminary
Prospectus, there has been no material adverse change in or affecting the consolidated financial condition, shareholders’ equity
or results of operations of the Company and its consolidated subsidiaries, taken as a whole, other than as set forth or contemplated in
the Pricing Disclosure Package.
(g) The
Underwriter shall have received a letter of Deloitte & Touche LLP, dated the Closing Date, which meets the requirements of Section 6(a),
except that the specified date referred to in Section 6(a) will be a date not more than three days prior to the Closing Date
for the purposes of this Section 6(g).
(h) The
Underwriter shall have received evidence that the Securities have been assigned the ratings set forth in the free writing prospectus that
contains the final terms of the Securities in the form set forth in Annex A hereto.
(i) The
Company will furnish the Underwriter with such conformed copies of such opinions, certificates, letters and documents as may be reasonably
requested.
7. Indemnification
and Contribution.
(a) The
Company will indemnify and hold harmless the Underwriter, its directors, officers and affiliates and each person, if any, who controls
the Underwriter within the meaning of the Act against any losses, claims, damages or liabilities, joint or several, to which the Underwriter,
such directors and officers or such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Underwriter, such
directors, officers and affiliates and each such controlling person for any legal or other expenses reasonably incurred by the Underwriter,
such directors, officers and affiliates or such controlling person, as incurred, in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, which information consists solely of the information specified in Section 7(b).
This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) The
Underwriter will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities
to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred, as incurred, by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will
be in addition to any liability that the Underwriter may otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of text on the cover page of the Most Recent Preliminary Prospectus and the Prospectus and in the third paragraph,
the third sentence of the fifth paragraph, the fourth sentence of the fifth paragraph, the sixth paragraph and the seventh paragraph of
text under the caption “Underwriting (Conflicts of Interest)” in the Most Recent Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by the Underwriter for inclusion in the Registration Statement, any Preliminary Prospectus,
the Prospectus and any Issuer Free Writing Prospectus or any amendment or supplement thereto.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party under this Section 7, notify the indemnifying party of
the commencement thereof; provided, that the failure to notify the indemnifying party shall not relieve it from any liability that
it may have under Section 7(a) or Section 7(b) except to the extent that it has been materially prejudiced (including
through the forfeiture of substantive rights or defenses) by such failure; provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under Section 7(a) or
Section 7(b). In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not,
without the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its assumption of the defense thereof, the indemnifying party will not be liable to such indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. Notwithstanding the indemnifying party’s election to appoint counsel to represent
the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties. Such firm shall be designated in writing by the Underwriter, in the
case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of parties indemnified pursuant to Section 7(b).
An indemnifying party shall not be liable for any settlement of a claim or action effected without its written consent, which shall not
be unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified parties, which consent shall
not be unreasonably withheld, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include
any findings of fact or admissions of fault or culpability as to the indemnified parties.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party for any loss,
claim, damage, liability or action described in Section 7(a) or Section 7(b), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in Section 7(a) or
Section 7(b) on the following basis: (i) if such loss, claim, damage, liability or action arises under Section 7(a),
then (A) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter
on the other hand from the offering of the Securities or (B) if the allocation provided by clause (A) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (A) above
but also the relative fault of the Company on the one hand and the Underwriter on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations; and (ii) if
such loss, claim, damage, liability or action arises under Section 7(b), then in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Underwriter on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. For purposes of clause
(i) above, the relative benefits received by the Company on the one hand and the Underwriter on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriter. For purposes of clause (i) and clause (ii) above,
the relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriter and
the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred
to above in this Section 7(d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 7(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any action or claim that is the subject of this Section 7(d).
Notwithstanding the provisions of this Section 7(d), the Underwriter shall not be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
8. Termination
by Underwriter. If this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, the Company shall not be liable to the Underwriter for the loss of anticipated profits from the
transactions contemplated by this Agreement. However, in such an event, the Company will reimburse the Underwriter for all out-of-pocket
expenses (including reasonable fees and disbursements of its counsel) reasonably incurred by the Underwriter in connection with this Agreement
and the offering contemplated hereunder; provided, however, that if the Securities are not delivered by or on behalf of
the Company solely as a result of the failure to satisfy the condition set forth in Section 6(c), the Company shall have no liability
to the Underwriter except as provided in Section 4(j) and Section 7.
9. Survival
of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements
of the Company or its officers and of the Underwriter set forth in or made pursuant to this Agreement will remain in full force and effect
regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriter or the Company or any
of its officers or directors or any controlling person, and will survive delivery of and payment for the Securities. If this Agreement
is terminated pursuant to Section 8, or if for any reason a purchase pursuant to this Agreement is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4, and the respective obligations of the Company
and the Underwriter pursuant to Section 7 shall remain in effect.
10. Notices.
All communications hereunder relating to any offering of Securities will be in writing, and, if sent to the Underwriter, may be mailed,
delivered or faxed and confirmed to Truist Securities, Inc., 3333 Peachtree Road NE, 11th Floor, Atlanta, Georgia 30326,
Attention: Investment Grade Debt Capital Markets, fax: (404) 926-5027. All communications hereunder to the Company shall be mailed to
the Company, Attention: Treasurer, at 400 North Fifth Street, Mail Station 9040, Phoenix, Arizona 85004, or delivered, faxed or emailed
and confirmed to the Company, at 400 North Fifth Street, Mail Station 9040, Phoenix, Arizona 85004, fax: (602) 250-2367, email: [REDACTED]
11. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder.
12. Execution
in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute a single instrument. The words “execution”, signed” and “signature”
and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include
images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”,
“tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use
of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent,
communicated, received or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed
signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including, without limitation,
the Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other
applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial
Code.
13. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
14. Waiver
of Jury Trial. The Company and the Underwriter hereby waive their respective rights to jury trial with respect to any litigation arising
under, or in connection with, this Agreement.
15. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
16. No
Fiduciary Duty. The Company acknowledges and agrees that in connection with this offering and sale of the Securities or any other
services the Underwriter may be deemed to be providing hereunder, notwithstanding any pre-existing relationship, advisory or otherwise,
between the parties or any oral representations or assurances previously or subsequently made by the Underwriter: (i) no fiduciary
or agency relationship between the Company and any other person, on the one hand, and the Underwriter, on the other hand, exists; (ii) the
Underwriter is not acting as an advisor, expert or otherwise, to the Company, including, without limitation, with respect to the determination
of the public offering price of the Securities, and such relationship between the Company, on the one hand, and the Underwriter, on the
other hand, is entirely and solely commercial and is based on arms’-length negotiations; (iii) any
duties and obligations that the Underwriter may have to the Company shall be limited to those duties and obligations specifically stated
herein; and (iv) the Underwriter and its affiliates may have interests that differ from those of the Company. To the full extent
allowed by law, the Company hereby waives any claims that the Company may have against the Underwriter with respect to any breach of fiduciary
duty in connection with this offering.
17. Recognition
of the U.S. Special Resolution Regimes. In the event that the Underwriter that is a Covered Entity (as defined below) becomes subject
to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from the Underwriter of this Agreement, and any
interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the
U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States
or a state of the United States. In the event that the Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below)
of the Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this
Agreement that may be exercised against the Underwriter are permitted to be exercised to no greater extent than such Default Rights could
be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the
United States. “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as
that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning
assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S.
Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with your understanding
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, |
| |
|
| |
PINNACLE WEST CAPITAL CORPORATION |
| |
|
| |
By: |
/s/ Paul Mountain |
| |
|
Name: Paul Mountain |
| |
|
Title: Vice President, Finance and Treasurer |
| The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the date first above written. |
|
| |
|
| Truist Securities, Inc. |
|
| |
|
| By: |
/s/ Robert Nordlinger |
|
| |
Name: Robert Nordlinger |
|
| |
Title: Authorized Signatory |
|
{Signature
Page to Underwriting Agreement}
Exhibit A
Issuer Free Writing Prospectuses Included
in the Pricing Disclosure Package
| · | Final Pricing Term Sheet related to the Securities attached hereto as Annex A |
Additional Information
Exhibit B
Issuer Free Writing Prospectuses Used by
the Company
| · | Final Pricing Term Sheet related to the Securities attached hereto as Annex A |
ANNEX A
Final Term Sheet
Pinnacle West Capital Corporation
$350,000,000 Floating Rate Senior Notes due
2026
June 5, 2024
| Issuer: | Pinnacle West Capital Corporation |
| Expected Ratings (Moody’s / S&P / Fitch): |
__ (__) / __ (__) / __ (__) |
| |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal
at any time. |
| Trade Date: |
June 5, 2024 |
| |
|
| Settlement Date: |
June 10, 2024 (T+3) |
| Security: | Floating Rate Senior Notes due 2026 |
| Principal Amount: |
$350,000,000 |
| |
|
| Maturity Date: |
June 10, 2026 |
| |
|
| Public Offering Price: |
100% of the principal amount, plus accrued interest, if any, from June 10, 2024 to date of delivery |
| |
|
| Underwriting Discount: |
0.225% |
| |
|
| Net Proceeds to Issuer (before expenses): |
$349,212,500 |
| |
|
| Interest Rate: |
Compounded SOFR (as defined in the preliminary prospectus supplement to which this offering relates) plus the Margin |
| Margin: | +82 basis points (the “Margin”) |
| Interest Payment Dates: |
Quarterly in arrears on March 10, June 10, September 10 and December 10 of each year, commencing on September 10, 2024 |
| |
|
| Day Count / Business Day Convention: |
Actual/360; Modified Following, unadjusted |
| |
|
| Minimum Denominations: |
$2,000 and integral multiples of $1,000 in excess thereof |
| CUSIP / ISIN: |
723484 AL5 / US723484AL56 |
| |
|
| Sole Book-Running Manager: |
Truist Securities, Inc. |
Pinnacle West Capital Corporation has filed a registration statement
(including a prospectus, as supplemented) with the Securities and Exchange Commission (“SEC”) for the offering to which this
communication relates. Before you invest, you should read the prospectus (as supplemented) in that registration statement and other documents
Pinnacle West Capital Corporation has filed with the SEC for more complete information about Pinnacle West Capital Corporation and this
offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, Pinnacle West Capital
Corporation and the underwriter participating in the offering will arrange to send you the prospectus if you request it by calling Truist
Securities, Inc. toll free at (800) 685-4786.
Any disclaimers or other notices that may appear below are not applicable
to this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication being
sent via email or another communication system.
Exhibit 4.1
PINNACLE WEST CAPITAL CORPORATION
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
As Trustee under Pinnacle West Capital Corporation’s
Indenture dated as of December 1, 2000 (For Senior Securities)
Fifth Supplemental Indenture
Dated as of June 10, 2024
Floating Rate Senior Notes due 2026
This FIFTH SUPPLEMENTAL INDENTURE,
dated as of June 10, 2024, is between Pinnacle West Capital Corporation, a corporation duly organized and existing under the laws
of the State of Arizona (herein called the “Company”), having its principal office at 400 North Fifth Street, Phoenix, Arizona
85004, and The Bank of New York Mellon Trust Company, N.A., successor to The Bank of New York Mellon (formerly known as The Bank of New
York), a national banking association, as Trustee (herein called the “Trustee”) under the Indenture (For Senior Securities)
dated as of December 1, 2000 between the Company and the Trustee (the “Indenture”).
RECITALS OF THE COMPANY
The Company has executed and
delivered the Indenture to the Trustee to provide for the issuance from time to time of its unsecured debentures, notes or other evidences
of indebtedness (the “Securities”), said Securities to be issued in one or more series as provided in the Indenture.
Section 901(5) of
the Indenture provides that, without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee may
enter into one or more indentures supplemental to the Indenture for the purpose of adding to, changing or eliminating any of the provisions
of the Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination shall neither
(i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision.
Section 901(7) of
the Indenture provides that, without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee may
enter into one or more indentures supplemental to the Indenture for the purpose of establishing the form or terms of Securities of any
series.
Pursuant to the terms of the
Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its Floating Rate Senior
Notes due 2026 (herein called the “Notes”), the form and substance of such Notes and the terms, provisions, and conditions
thereof to be set forth as provided in the Indenture and this Fifth Supplemental Indenture.
All things necessary to make
this Fifth Supplemental Indenture a valid agreement of the Company, and to make the Notes described herein, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done.
NOW, THEREFORE, THIS FIFTH
SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of
the premises and the purchase of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture,
the form and substance of each of the Notes and the terms, provisions, and conditions thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes, as applicable, as follows:
ARTICLE One
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 101. Additional
Definitions. For all purposes of this Fifth Supplemental Indenture:
Capitalized terms used herein
shall have the meaning specified herein or in the Indenture, as the case may be.
“Benchmark” means,
initially, Compounded SOFR, provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with
respect to Compounded SOFR (or the published SOFR Index used in the calculation thereof) or the then-current Benchmark, then “Benchmark”
means the applicable Benchmark Replacement.
“Benchmark Replacement”
means the first alternative set forth in the order below that can be determined by the Company (or the Designee) as of the Benchmark Replacement
Date:
(1) the
sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement
for the then-current Benchmark and (b) the Benchmark Replacement Adjustment;
(2) the
sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; and
(3) the
sum of: (a) the alternate rate of interest that has been selected by the Company (or the Designee) as the replacement for the then-current
Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S.
dollar denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment.
“Benchmark Replacement
Adjustment” means the first alternative set forth in the order below that can be determined by the Company (or the Designee) as
of the Benchmark Replacement Date:
(1) the
spread adjustment, or method for calculating or determining such spread adjustment, (which may be positive or negative value or zero)
that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
(2) if
the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; and
(3) the
spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company (or the Designee) giving due
consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement
of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at
such time.
The Benchmark Replacement
Adjustment shall not include the Margin and such Margin shall be applied to the Benchmark Replacement to determine the interest payable
on the Notes.
“Benchmark Replacement
Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including
changes to the definition or interpretation of “interest period”, timing and frequency of determining rates and making payments
of interest, rounding of amounts or tenor, and other administrative matters), or any other changes to any other terms or provisions of
the Notes, in each case that the Company (or the Designee) decides may be appropriate to reflect the adoption of such Benchmark Replacement
in a manner substantially consistent with market practice (or, if the Company (or the Designee) decides that adoption of any portion of
such market practice is not administratively feasible or if the Company (or the Designee) determines that no market practice for use of
the Benchmark Replacement exists, in such other manner as the Company (or the Designee) determines is reasonably necessary or practicable).
“Benchmark Replacement
Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in
the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date
of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark
permanently or indefinitely ceases to provide the Benchmark; or
(2) in
the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication
of information referenced therein.
For the avoidance of doubt,
if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect
of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition
Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark (including the daily
published component used in the calculation thereof):
(1) a
public statement or publication of information by or on behalf of the administrator of the Benchmark (or such component) announcing that
such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that,
at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such
component);
(2) a
public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component),
the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the administrator
for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component),
which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component)
permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will
continue to provide the Benchmark (or such component); or
(3) a
public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the
Benchmark is no longer representative.
“Business Day”
means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which banking institutions in The City of New York
are authorized or required by law, regulation or executive order to close.
“Calculation Agent”
means a banking institution or trust company appointed by the Company to act as calculation agent, initially The Bank of New York Mellon
Trust Company, N.A.
“Compounded SOFR”
means as determined by the Calculation Agent in accordance with the following formula (and the resulting percentage will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point):
where:
“SOFR IndexStart”
= For periods other than the initial interest period, the SOFR Index value on the preceding Interest Payment Determination Date, and,
for the initial interest period, the SOFR Index value two U.S. Government Securities Business Days before the date of original issuance;
“SOFR IndexEnd”
= The SOFR Index value on the Interest Payment Determination Date relating to the applicable Interest Payment Date (or, in the final interest
period, relating to the Maturity Date); and
“dc” is the number
of calendar days in the relevant Observation Period.
If a SOFR IndexStart or SOFR
IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark
Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable interest period for which
such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for
SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at https://www.newyorkfed.org/markets/treasury-repo-reference-rates-information.
For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation
period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180- calendar days”
shall be removed. If SOFR does not so appear for any day, “i” in the Observation Period, SOFRi for such day “i”
shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the
SOFR Administrator’s Website.
“Designee” means
an independent financial advisor or such other designee of the Company. The Bank of New York Mellon Trust Company, N.A. shall not be the
Designee.
“Interest Payment Date”
has the meaning set forth in Section 105(a) hereof.
“Interest Payment Determination
Date” means the date two U.S. Government Securities Business Days before each Interest Payment Date.
“interest period”
means the period commencing on any Interest Payment Date (or, with respect to the initial interest period only, commencing on the Issue
Date) to, but excluding, the next succeeding Interest Payment Date, and, in the case of the last such period, from and including the Interest
Payment Date immediately preceding the Maturity Date to but excluding the Maturity Date.
“ISDA Definitions”
means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto,
as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time
to time.
“ISDA Fallback Adjustment”
means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing
the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark.
“ISDA Fallback Rate”
means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an
index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“Issue Date” has
the meaning set forth in Section 105(a) hereof.
“Margin” has the
meaning set forth in Section 105(a) hereof.
“Maturity Date”
has the meaning set forth in Section 102 hereof.
“Observation Period”
means, in respect of each interest period, the period from, and including, the date that is two U.S. Government Securities Business Days
preceding the first date in such interest period to, but excluding, the date that is two U.S. Government Securities Business Days preceding
the Interest Payment Date for such interest period (or in the final interest period, preceding the Maturity Date).
“Reference Time”
with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR Index Determination Time,
and (2) if the Benchmark is not Compounded SOFR, the time determined by the Company (or the Designee) in accordance with the Benchmark
Replacement Conforming Changes.
“Regular Record Date”
has the meaning set forth in Section 105(a) hereof.
“Relevant Governmental
Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened
by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“SOFR” means the
daily secured overnight financing rate as provided by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of SOFR).
“SOFR Administrator’s
Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source.
“SOFR Index” means,
with respect to any U.S. Government Securities Business Day:
(1) the
SOFR Index value as published by the SOFR Administrator as such index appears on the SOFR Administrator’s Website at 3:00 p.m. (New
York time) on such U.S. Government Securities Business Day (the “SOFR Index Determination Time”); provided that:
(2) if
a SOFR Index value does not so appear as specified in (1) above at the SOFR Index Determination Time, then: (i) if a Benchmark
Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, then Compounded SOFR shall be the
rate determined pursuant to the last paragraph of the definition of Compounded SOFR; or (ii) if a Benchmark Transition Event and
its related Benchmark Replacement Date have occurred with respect to SOFR, then Compounded SOFR shall be the rate determined pursuant
to Section 107 hereof.
“SOFR Index Determination
Time” has the meaning set forth in the definition of SOFR Index.
“Unadjusted Benchmark
Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“U.S. Government Securities
Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial Markets Association
recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
All references herein to Articles
and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Fifth Supplemental Indenture.
The terms “herein,”
“hereof,” “hereunder” and other words of similar import refer to this Fifth Supplemental Indenture.
SECTION 102. Authentication
and Delivery. There shall be and is hereby authorized a series of Securities designated the “Floating Rate Senior Notes due
2026” initially limited in aggregate principal amount to $350,000,000, which amount shall be as set forth in a Company Order for
the authentication and delivery of Notes. The Notes shall mature and the principal shall be due and payable together with all accrued
and unpaid interest thereon on June 10, 2026 (the “Maturity Date”), and the Notes shall be issued in the form of registered
Securities without coupons.
The foregoing principal amount
of the Notes may be increased from time to time as permitted by Section 301 of the Indenture. All Notes need not be issued at the
same time and such series may be reopened at any time, without notice to, or the consent of, the then existing Holders, for issuance of
additional Notes. Any such additional Notes will be equal in rank and have the same respective maturity, payment terms, and other terms
as the Notes initially issued, except for the issue date, public offering price, payment of interest accruing prior to the issue date,
and first payment of interest following the issue date of the additional Notes, but the Company will not issue such additional Notes unless
the additional Notes are fungible with the previously issued Notes for U.S. federal income tax purposes or are issued with a separate
CUSIP number.
SECTION 103. Global
Security. The Notes shall be issued in certificated form, except that the Notes shall be issued initially as a Global Security to
and registered in the name of Cede & Co., as nominee of The Depository Trust Company, as Depositary therefor. Any Notes to be
issued or transferred to, or to be held by, Cede & Co. (or any successor thereof) for such purpose shall bear the depositary
legend in substantially the form set forth at the top of the form of Note in Section 401 hereof (in lieu of that set forth in Section 204
of the Indenture), unless otherwise agreed by the Company, such agreement to be confirmed in writing to the Trustee. Each such Global
Security may be exchanged in whole or in part for Notes registered, and any transfer of such Global Security in whole or in part may be
registered, in the name(s) of Persons other than such Depositary or a nominee thereof only under the circumstances set forth in clause
(2) of the last paragraph of Section 305 of the Indenture, or such other circumstances in addition to or in lieu of those set
forth in clause (2) of the last paragraph of Section 305 of the Indenture as to which the Company shall agree, such agreement
to be confirmed in writing to the Trustee. Upon the occurrence of any such event, the Notes will be issued in such names as the Depositary
shall instruct the Trustee.
SECTION 104. Place
of Payment and Place for Registration of Transfers and Exchange. Principal of, and premium, if any, and interest on, the Notes will
be payable, the transfer of Notes will be registrable and the Notes will be exchangeable for Notes bearing identical terms and provisions,
at the office or agency of the Company in the City of Dallas, State of Texas; provided, however, that payment of interest
may be made at the option of the Company by wire transfer to any Holder or by deposit to the account of the Holder of any such Notes if
such account is maintained with the Trustee, in each case according to the written instructions given by such Holder on or prior to the
applicable record date to the Trustee, which written instructions shall remain in effect until revised by such Holder by an instrument
in writing delivered to the Trustee.
SECTION 105. Payment
of Interest.
(a) The Notes shall bear
interest at an annual rate equal to Compounded SOFR plus 82 basis points (the “Margin”) from and including June 10, 2024
(the “Issue Date”) to, but excluding, the Maturity Date. Interest shall be payable quarterly in arrears on March 10,
June 10, September 10 and December 10 of each year (each an “Interest Payment Date”), beginning on September 10,
2024. The record date (the “Regular Record Date”) for interest payable on any Interest Payment Date shall be the close of
business on (1) the Business Day immediately preceding such Interest Payment Date so long as all of the Notes remain in book-entry
only form or (2) the 15th calendar day immediately preceding such Interest Payment Date if any of the Notes do not remain in book-entry
only form. Interest on the Notes will accrue from and including the Issue Date to but excluding the first Interest Payment Date. Starting
on the first Interest Payment Date, interest on the Notes will accrue from and including the last Interest Payment Date to which the Company
has paid, or duly provided for the payment of, interest on the Notes to but excluding the next succeeding Interest Payment Date. No interest
will accrue on the Notes for the day that the Notes mature. The amount of interest payable for any period will be computed on the basis
of a 360-day year and the actual number of days in the Observation Period.
(b) Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable to the Holders on such Regular Record Date and may either
(i) be paid to the Person in whose name such Note (or one or more Predecessor Securities) is registered at the close of business
on the Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of the Notes not less than 10 days prior to such Special Record Date, or (ii) be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or traded,
and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in the Indenture.
(c) If any Interest Payment
Date falls on a day that is not a Business Day, the Company will make the interest payment on the next succeeding Business Day unless
that Business Day is in the next succeeding calendar month, in which case (other than in the case of the Maturity Date) the Company will
make the interest payment on the immediately preceding Business Day. If an interest payment is made on the next succeeding Business Day,
no interest will accrue as a result of the delay in payment. If the Maturity Date of the Notes falls on a day that is not a Business Day,
the payment due on such date will be postponed to the next succeeding Business Day, and no further interest will accrue in respect of
such postponement.
SECTION 106. Calculations.
(a) On each Interest
Payment Determination Date relating to the applicable Interest Payment Date, the Calculation Agent will calculate the amount of accrued
interest payable on the Notes by multiplying (i) the outstanding principal amount of the Notes by (ii) the product of (a) the
interest rate for the relevant interest period multiplied by (b) the quotient of the actual number of calendar days in such Observation
Period divided by 360. In no event will the interest on the Notes be less than zero. The interest rate for any interest period will not
be adjusted for any modifications or amendments to the SOFR Index or SOFR data that the SOFR Administrator may publish after the interest
rate for that interest period has been determined.
(b) Absent willful misconduct,
gross negligence or manifest error, the calculation of the applicable interest rate for each interest period by the Calculation Agent
or, in certain circumstances, by the Company (or the Designee) will be final and binding on the Company, the Trustee, and the Holders
of the Notes.
(c) None of the Trustee,
Paying Agent, Security Registrar or Calculation Agent shall be under any obligation (i) to monitor, determine or verify the unavailability
or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the
occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark
Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have
been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement
or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if
any, in connection with any of the foregoing, including, but not limited to, adjustments as to any alternative spread thereon, the business
day convention, interest payment determination dates or any other relevant methodology applicable to such substitute or successor benchmark.
In connection with the foregoing, each of the Trustee, the Paying Agent, the Security Registrar and the Calculation Agent shall be entitled
to conclusively rely on any determinations made by the Company or the Designee without independent investigation, and none will have any
liability for actions taken at the Company’s direction in connection therewith.
(d) None of the Trustee,
Paying Agent, Security Registrar or Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of
its duties described in the Indenture as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement,
including as a result of any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any
direction, instruction, notice or information contemplated by the Indenture and reasonably required for the performance of such duties.
None of the Trustee, the Paying Agent, the Security Registrar or the Calculation Agent shall be responsible or liable for the Company’s
actions or omissions or for those of the Designee, or for any failure or delay in the performance by the Designee, nor shall any of the
Trustee, the Paying Agent, the Security Registrar or the Calculation Agent be under any obligation to oversee or monitor the Company’s
performance or that of the Designee.
SECTION 107. Effect
of Benchmark Transition Event.
(a) If the Company (or
the Designee) determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference
Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for
all purposes relating to the Notes in respect of such determination on such date and all determinations on all subsequent dates.
(b) In connection with
the implementation of a Benchmark Replacement, the Company (or the Designee) will have the right to make Benchmark Replacement Conforming
Changes from time to time.
(c) Any determination,
decision or election that may be made by the Company (or the Designee) pursuant to this Section 107, including any determination
with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to
take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, will be made in the Company’s
(or the Designee’s) sole discretion, and, notwithstanding anything to the contrary in any documentation relating to the Notes, shall
become effective without consent from the Holders of the Notes or any other party.
(d) For the avoidance
of doubt, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each interest
period on the Notes will be an annual rate equal to the sum of the Benchmark Replacement and the Margin.
(e) Notwithstanding anything
to the contrary in the Indenture, if the Company (or the Designee) determines on or prior to the relevant Reference Time that a Benchmark
Transition Event and its related Benchmark Replacement Date have occurred with respect to determining Compounded SOFR, then the benchmark
replacement provisions set forth in this Section 107 will thereafter apply to all determinations of the rate of interest payable
on the Notes.
SECTION 108. Defeasance
of the Notes. The Notes shall be defeasible pursuant to Section 1302 or 1303 of the Indenture.
SECTION 109. Minimum
Denominations. The Notes shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
ARTICLE Two
OTHER TERMS AND CONDITIONS OF THE NOTES
SECTION 201. Notices,
Etc., to Trustee and Company. Solely for purposes of the Notes, Section 105 of the Indenture shall be amended by adding the following
paragraph at the end thereof:
The Trustee shall
have the right to accept and act upon instructions or directions, including funds transfer instructions, pursuant to this Indenture and
delivered using Electronic Means (“Instructions”); provided, however, that the Company shall provide to the Trustee an incumbency
certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen
signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added
or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion
elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company
understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall
conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided
to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers
transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use
and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The
Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with
such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees:
(i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that
it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and
that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the
security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable
degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning
of any compromise or unauthorized use of the security procedures. "Electronic Means" shall mean the following communications
methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued
by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
SECTION 202. Waiver
of Jury Trial, Submission to Jurisdiction and Tax Law Matters. Solely for purposes of the Notes, Article One of the Indenture
shall be amended by adding the following Sections:
SECTION 114. Waiver
of Jury Trial.
Each of the Company,
the Holders and the Trustee hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the transaction contemplated hereby.
SECTION 115. Submission
to Jurisdiction.
The Company hereby
(a) irrevocably submits, to the fullest extent permitted by applicable law, to the jurisdiction of any New York State court sitting
in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in
respect of any suit, action or proceeding arising out of or relating to this Indenture and the Notes and (b) irrevocably accepts
for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
SECTION 116. Tax
Law Matters.
In order to comply
with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent
authorities) in effect from time to time (“Applicable Tax Law”), the Company agrees (a) to provide to the Trustee sufficient
information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions)
so the Trustee can determine whether it has tax-related obligations under Applicable Tax Law, (b) that the Trustee shall be entitled
to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Tax Law for
which the Trustee shall not have any liability and (c) to hold harmless the Trustee for any losses the Trustee may suffer due to
the actions it takes to comply with such Applicable Tax Law unless such actions taken by the Trustee were negligent or of its own willful
misconduct. The terms of this Section 116 shall survive the termination of this Indenture.
SECTION 203. Certain
Rights of Trustee. Solely for purposes of the Notes, Section 603 of the Indenture shall be amended by deleting “and”
at the end of clause (6) thereof, by replacing the period at the end of clause (7) thereof with “; and”, and by
adding the following clause (8) thereto:
(8) the
Trustee shall not be deemed to have notice of any default or Event of Default unless written notice of any event that is in fact such
a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee and such notice references
the Notes and this Indenture. The Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture. The Trustee
shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts. The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder and each agent, custodian and other Person employed to act hereunder. Delivery of reports, information and
documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). In no event
shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including,
without limitation, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, or interruptions, losses or malfunctions of utilities, communications or computer (software and hardware) services, it being understood
that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
SECTION 204. Definitions.
Solely for purposes of the Notes, Section 101 of the Indenture shall be amended by deleting the following definitions in their entirety
and replacing such definitions with the following:
“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by any two of its Chief Executive Officer,
its Chief Financial Officer, its General Counsel, its Treasurer, its Secretary, an Assistant Secretary of the Company or an Associate
Secretary of the Company, and delivered to the Trustee.
“Officers’
Certificate” means a certificate signed by any two of the Company’s Chief Executive Officer, the Company’s Chief Financial
Officer, the Company’s General Counsel, the Company’s Treasurer, the Company’s Secretary, an Assistant Secretary of
the Company or an Associate Secretary of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate
given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.
SECTION 205. Reports
by the Company. Solely for purposes of the Notes, Section 704 of the Indenture shall be amended by adding the following sentence
at the end thereof:
Information, documents
and reports filed with the Commission via the Commission’s EDGAR system (or any successor system thereto) will be deemed to be filed
with the Trustee and transmitted to Holders as of the time of such filing via EDGAR (or such successor system) for purposes of this Section 704.
SECTION 206. Supplemental
Indentures With Consent of Holders. Solely for purposes of the Notes, Section 902 of the Indenture shall be amended by replacing
“not less than 66-2/3%” in the first sentence thereof with “a majority”.
SECTION 207. Maintenance
of Properties. Solely for purposes of the Notes, Section 1006 of the Indenture shall be deleted in its entirety.
SECTION 208. Payment
of Taxes and Other Claims. Solely for purposes of the Notes, Section 1007 of the Indenture shall be deleted in its entirety.
SECTION 209. Authentication
of the Notes. Solely for purposes of the Notes, Section 303 of the Indenture shall be amended by adding “or electronic”
after “manual” in the first, second, and last paragraphs thereof.
ARTICLE Three
LIMITATION
ON LIENS
SECTION 301. Limitation
on Liens. So long as any of the Notes are Outstanding, the Company shall not, directly or indirectly (including through a Subsidiary),
create, incur, assume or permit to exist any lien, pledge or security interest on any of the capital stock of Arizona Public Service Company,
an Arizona corporation. For purposes of this Section 301, the reference to “corporation” in the definition of “Subsidiary”
in Section 101 of the Indenture shall be amended to “corporation or any other entity”.
ARTICLE Four
FORM OF
NOTES
SECTION 401. Form of
Notes. The Notes and the Trustee’s certificate of authentication thereon shall be substantially in the following forms:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO PINNACLE WEST CAPITAL CORPORATION OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE 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.
PINNACLE WEST CAPITAL CORPORATION
Floating Rate Senior Note due 2026
| No. 1 |
$350,000,000 |
| |
CUSIP No. 723484 AL5 |
Pinnacle West Capital Corporation,
a corporation duly organized and existing under the laws of the State of Arizona (the “Company”, which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of Three Hundred and Fifty Million Dollars ($350,000,000) on June 10, 2026, and to pay interest thereon
and on any overdue interest from June 10, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly in arrears on March 10, June 10, September 10 and December 10 of each year, commencing September 10,
2024, at an interest rate equal to Compounded SOFR plus 0.82% per annum, until the principal hereof is paid or made available for payment.
The amount of interest payable for any period will be computed on the basis of a 360-day year and the actual number of days in the Observation
Period.
The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be {the Business Day immediately preceding such Interest Payment Date}{the 15th calendar day immediately preceding
such Interest Payment Date, whether or not a Business Day}1.
If any Interest Payment Date falls on a day that is not a Business Day, the Company will make the interest payment on the next succeeding
Business Day unless that Business Day is in the next succeeding calendar month, in which case (other than in the case of the Maturity
Date) the Company will make the interest payment on the immediately preceding Business Day. If an interest payment is made on the next
succeeding Business Day, no interest will accrue as a result of the delay in payment. If the Maturity Date of the Notes falls on a day
that is not a Business Day, the payment due on such date will be postponed to the next succeeding Business Day, and no further interest
will accrue in respect of such postponement. A “Business Day” shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to close.
Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange or automated quotation system on which the Securities of this series may be listed or traded,
and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in the Indenture.
Payment of the principal of
(and premium, if any) and any interest on this Security will be made at the office or agency of the Company maintained for that purpose
through the corporate trust office of the Trustee, in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the
option of the Company by wire transfer to any Holder or by deposit to the account of the Holder of any such Securities if such account
is maintained with the Trustee, in each case according to the written instructions given by such Holder on or prior to the applicable
record date to the Trustee, which written instructions shall remain in effect until revised by such Holder by an instrument in writing
delivered to the Trustee.
Reference is hereby made to
the further provisions of this Security set forth following the Company’s signature hereto, which further provisions shall for all
purposes have the same effect as if set forth at this place.
1 NTD: Insert first bracketed language if Global Security
otherwise insert second bracketed language.
Unless the certificate of
authentication hereon has been executed by the Trustee referred to following the Company’s signature hereto by manual or electronic
signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed under its corporate seal.
| |
PINNACLE WEST CAPITAL CORPORATION |
| |
|
| |
|
| |
By: |
|
| |
|
Paul Mountain |
| |
|
Vice President, Finance and Treasurer |
| Attest: |
|
| |
|
| |
|
| By: |
|
|
| |
Diane Wood |
|
| |
Corporate Secretary |
|
This Security is one of a
duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more
series under an Indenture (For Senior Securities), dated as of December 1, 2000 (such instrument as originally executed and delivered
and as supplemented or amended from time to time, the “Indenture”), between the Company and The Bank of New York Mellon Trust
Company, N.A., successor to The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (the “Trustee,”
which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a description of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated
on the face hereof.
The Securities of this series
will not be subject to redemption or to any sinking fund.
The Indenture contains provisions
for defeasance at any time of the entire indebtedness of this Security and certain restrictive covenants and Events of Default with respect
to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
The Indenture contains provisions
restricting the Company’s ability to create, incur, assume or permit to exist any lien, pledge or security interest on any of the
capital stock of Arizona Public Service Company, an Arizona corporation.
If an Event of Default with
respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the
rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee without
the consent of such Holders in certain circumstances, or with the consent of the Holders of not less than 66-2/3% in principal amount
of the affected Securities at the time Outstanding; provided, however, that, for purposes of the Securities of this series, such 66-2/3%
threshold has been replaced with a majority threshold. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the affected Securities at the time Outstanding, on behalf of the Holders of all such Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject
to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other remedy under the Indenture, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall
not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender
of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount will
be issued to the designated transferee or transferees.
The Securities of this series
are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be
made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person
in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and
none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.
All terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Form of Trustee’s
Certificate of Authentication.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
Dated:
| |
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., |
| |
|
| |
As Trustee |
| |
|
| |
By |
|
| |
Authorized Officer |
SECTION 402. General
Provisions. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Fifth Supplemental Indenture, and the
Company, by its execution and delivery of this Fifth Supplemental Indenture, expressly agrees to such terms and provisions and to be bound
thereby. However, to the extent any provision of the Notes conflicts with the express provisions of this Fifth Supplemental Indenture
or the Indenture, the provisions of this Fifth Supplemental Indenture or the Indenture, as applicable, shall govern and be controlling.
ARTICLE Five
ORIGINAL
ISSUE OF NOTES
SECTION 501. Issuance
of Notes. Subject to Section 102, Notes in the aggregate principal amount of $350,000,000 may, upon execution of this Fifth Supplemental
Indenture, or from time to time thereafter, be executed by the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes, in accordance with a Company Order delivered to the Trustee by the Company, without
any further action by the Company.
ARTICLE Six
CALCULATION
AGENT, PAYING AGENT AND REGISTRAR
SECTION 601. Appointment
of Calculation Agent, Paying Agent and Registrar. The Bank of New York Mellon Trust Company, N.A. will be the Calculation Agent, Paying
Agent and Security Registrar for the Notes.
ARTICLE Seven
SUNDRY
PROVISIONS
SECTION 701. Defined
Terms. Except as otherwise expressly provided in this Fifth Supplemental Indenture or in the form of the Notes, or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form of the Notes that are defined in the Indenture shall
have the several meanings respectively assigned to them thereby.
SECTION 702. Ratification
of Indenture. The Indenture, as heretofore supplemented and amended, and as supplemented by this Fifth Supplemental Indenture, is
in all respects ratified and confirmed, and this Fifth Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 703. About
the Trustee. The Trustee hereby accepts the trusts herein declared, provided, created, supplemented or amended and agrees to perform
the same upon the terms and conditions herein and in the Indenture, as heretofore supplemented and amended, set forth and upon the following
terms and conditions:
The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of this Fifth Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made by the Company solely. Each and every term and condition contained in Article Six
of the Indenture shall apply to and form a part of this Fifth Supplemental Indenture with the same force and effect as if the same were
herein set forth in full with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the
provisions of this Fifth Supplemental Indenture.
SECTION 704. Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. The use of electronic signatures and electronic records (including,
without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall
be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system
to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based
on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
{REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK}
IN WITNESS WHEREOF, the parties
hereto have caused this Fifth Supplemental Indenture to be duly executed as of the day and year first above written.
| |
|
| |
PINNACLE WEST CAPITAL CORPORATION |
| |
|
| |
By: |
/s/ Paul Mountain |
| |
|
Name: Paul Mountain |
| |
|
Title: Vice President, Finance and Treasurer |
| Attest: |
|
| |
|
| /s/ Diane Wood |
|
| Name: Diane Wood |
|
| Title: Assistant Vice President, Associate
General Counsel, and Corporate Secretary |
|
| |
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Trustee |
| |
|
| |
By: |
/s/
Michael C. Jenkins |
| |
|
Name: Michael C. Jenkins |
| |
|
Title: Vice President |
Exhibit 5.1
June 10, 2024
Pinnacle West Capital Corporation
400 North 5th Street
Phoenix, Arizona 85004
Ladies and Gentlemen:
I have supervised lawyers
who have acted as in-house counsel for Pinnacle West Capital Corporation, an Arizona corporation (the “Company”), in connection
with the Company’s (a) proposed offering of an indeterminate amount of debt securities, as contemplated by the registration
statement on Form S-3 No. 333-277448 filed by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, on February 28, 2024 (the “Registration Statement”); and (b) issuance
and sale of $350,000,000 aggregate principal amount of Floating Rate Senior Notes due 2026 (the “Notes”) pursuant to the Underwriting
Agreement, dated June 5, 2024 (the “Underwriting Agreement”), among the Company and the underwriter named therein, and
the Indenture, dated as of December 1, 2000, as amended and supplemented to the date hereof and as further amended and supplemented
by the Fifth Supplemental Indenture dated as of June 10, 2024 (the “Indenture”), filed by the Company as Exhibit 4.1
to its Form 8-K Report.
I, or lawyers under my supervision,
have reviewed the definitive prospectus, dated February 28, 2024, and the prospectus supplement, dated June 5, 2024 (the prospectus
and prospectus supplement, and all material incorporated therein by reference being hereinafter referred to collectively as the “Prospectus”),
relating to the Notes. I, or lawyers under my supervision, have also reviewed the originals, or copies certified to my satisfaction, of
such other documents and records and made such other investigation as I have deemed necessary or appropriate to render the opinions set
forth below. I have also relied upon certificates of public officials and relevant public records.
In my review, or the review
by lawyers under my supervision, of the Indenture, any supplement thereto and the Notes and in rendering the opinions herein, I have
assumed, without investigation: (i) the genuineness of the signatures not witnessed, the authenticity of documents submitted as originals,
and the conformity to originals of documents submitted as copies; (ii) the legal competency and capacity of all natural persons executing
such documents or otherwise involved in the issuance and sale of the Notes; (iii) that such documents accurately and completely describe
and contain the parties’ mutual intent, understanding, and business purposes, and that there are no oral or written statements,
agreements, understandings or negotiations, nor any usage of trade or course of prior dealing among the parties that directly or indirectly
modify, define, amend, supplement or vary, or purport to modify, define, amend, supplement or vary, any of the terms of such documents
or any of the parties’ rights or obligations thereunder, by waiver or otherwise; (iv) that each entity who has executed or
is executing any of such documents (other than the Company) had the power to enter into and perform its obligations under such documents,
and that such documents have been duly authorized, executed or authenticated, and delivered by, and are valid, binding upon, and enforceable
against, such entities, in accordance with their respective terms; (v) that no party will receive any interest, charges, fees, or
other benefits or compensation in the nature of interest in connection with the transactions other than those that the Company has agreed
in writing in such documents to pay; and (vi) that no fraud has occurred in connection with such transactions.
Page 2
Based on the foregoing, and
subject to the assumptions, qualifications and limitations expressed herein, it is my opinion that upon the issuance and delivery of the
Notes in accordance with the Underwriting Agreement and the Indenture, and receipt by the Company of the consideration set forth in the
Prospectus, the Notes will be validly issued and will constitute legal, valid, and binding obligations of the Company, except as the same
may be limited by and subject to: (a) bankruptcy, insolvency, fraudulent conveyance and transfer, receivership, conservatorship,
reorganization, arrangement, moratorium, or other similar laws relating to or affecting the rights of creditors generally; (b) general
principles of equity (whether considered in a proceeding in equity or at law); and (c) concepts of materiality, reasonableness, good
faith and fair dealing and the discretion of the court before which any matter may be brought.
The opinions expressed herein
are based upon the law and facts in effect on the date hereof, and I assume no obligation to update, revise or supplement this opinion,
regardless of whether changes in such facts or laws come to my attention after the delivery hereof.
Consent is hereby given to
the use of this opinion as part of the Registration Statement, and to the use of my name wherever it appears in the Registration Statement
and the related Prospectus. In giving such consent, I do not thereby concede that I am included in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended or the rules and regulations of the Commission
promulgated thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Robert E. Smith |
| |
Robert E. Smith |
| |
Executive Vice President, General
Counsel and Chief Development Officer, |
| |
Pinnacle West Capital Corporation |
Exhibit 99.1
Item 14. Other Expenses of Issuance and Distribution.
The expenses, other than underwriting discounts
and commissions, to be incurred by Pinnacle West Capital Corporation (the “Company”) relating to the offering of $350,000,000
principal amount of its Floating Rate Senior Notes due 2026, under the Company’s Registration Statement on Form S-3 (No. 333-277448)
and a related prospectus supplement filed with the Securities and Exchange Commission and dated June 10, 2024 are estimated to be
as follows:
| Securities and Exchange Commission registration fee | |
$ | 51,660 | |
| Printing, engraving, and postage expenses | |
$ | 15,000 | |
| Legal fees and expenses | |
$ | 9,500 | |
| Accounting fees and expenses | |
$ | 75,000 | |
| Rating Agency fees | |
$ | 764,7500 | |
| Transfer Agent and Registrar, Trustee and Depository fees and expenses | |
$ | 12,400 | |
| Total | |
$ | 928,310 | |
v3.24.1.1.u2
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Pinnacle West Capital (NYSE:PNW)
Historical Stock Chart
Von Dez 2024 bis Jan 2025
Pinnacle West Capital (NYSE:PNW)
Historical Stock Chart
Von Jan 2024 bis Jan 2025
