THE BANK OF NEW YORK TRUST COMPANY, N.A. Trustee THIRD SUPPLEMENTAL INDENTURE Dated as of May 13, 2008 To INDENTURE
EXHIBIT 4.1
PUBLIC
SERVICE COMPANY OF NEW MEXICO
TO
THE
BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
_______________________________
Dated
as of May 13, 2008
To
INDENTURE
Dated
as of August 1, 1998
_______________________________
Providing
for
7.95% Senior
Unsecured Notes Due 2018
00038281.8
THIRD SUPPLEMENTAL INDENTURE,
dated as of May 13, 2008, between PUBLIC SERVICE COMPANY OF NEW
MEXICO, a New Mexico corporation (the “Company”), having its
principal office at Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, and THE BANK OF NEW YORK TRUST COMPANY,
N.A. (as successor to JPMorgan Chase Bank, N.A. (formerly JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank))), a national banking
association, as Trustee (the “Trustee”) under the Indenture,
dated as of August 1, 1998, 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 senior notes (the “Notes”), said Notes to be
issued in one or more series as in the Indenture provided.
The Company has executed and delivered
to the Trustee a First Supplemental Indenture, dated as of August 1, 1998,
between the Company and the Trustee to establish the forms and terms of two
series of Notes, and a Second Supplemental Indenture, dated as of September 1,
2003, between the Company and the Trustee to establish the forms and terms of
one series of Notes (the Indenture, as supplemented by said First Supplemental
Indenture, and said Second Supplemental Indenture, the “Indenture, as heretofore
supplemented”).
On October 2, 2006, The Bank of New
York Trust Company, N.A. succeeded to JPMorgan Chase Bank, N.A. (formerly
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank)) as
Trustee.
Pursuant
to the terms of the Indenture, the Company desires to provide for the
establishment of a new series of its Notes to be known as its 7.95% Senior
Unsecured Notes Due 2018 (herein called the “2008 Notes”), the form and
substance of the 2008 Notes and the terms, provisions, and conditions thereof to
be set forth as provided in the Indenture and this Third Supplemental
Indenture.
Section 9.01 of the Indenture provides
that, without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental to the Indenture as
provided in Section 9.01 of the Indenture, and the Company desires to amend the
Indenture, as heretofore supplemented, as hereinafter provided, and has
requested that the Trustee join in the execution and delivery
hereof.
All
things necessary to make this Third Supplemental Indenture a valid, binding and
enforceable agreement of the Company, and to make the 2008 Notes, when executed
by the Company and authenticated and delivered by the Trustee, the valid
obligations of the Company, have been done.
NOW, THEREFORE, THIS THIRD
SUPPLEMENTAL INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the 2008 Notes by the
Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the 2008 Notes and the terms, provisions,
and conditions thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the 2008 Notes as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS
OF
THE 2008 NOTES
Section 1.01 There
shall be and is hereby authorized a series of Notes designated the “7.95% Senior
Unsecured Notes Due 2018”. The 2008 Notes shall initially be
authenticated and delivered in the aggregate principal amount of
$350,000,000. The 2008 Notes shall mature and the principal thereof
shall be due and payable together with all accrued and unpaid interest thereon
on May 15, 2018. The Company may issue, without the consent of the
Holders of the 2008 Notes, additional 2008 Notes from time to time in accordance
with Section 3.01 hereof. Any such additional 2008 Notes shall have
identical terms as the 2008 Notes, unless otherwise determined by the Company
with respect to their original date of issuance, their original interest accrual
date, and their original Interest Payment Date. Any such additional
2008 Notes, together with the other 2008 Notes, shall constitute a single series
for purposes of the Indenture.
Section 1.02 The
2008 Notes shall be issued in fully registered form without coupons, initially
as one or more Global Notes to and registered in the name of Cede & Co., as
nominee of The Depository Trust Company, as Depositary therefor. Any
2008 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 in the second paragraph at the top of the form
of 2008 Note in Article II hereof (in addition to that set forth in Section 2.04
of the Indenture), unless otherwise agreed by the Company, such agreement to be
confirmed in writing to the Trustee. Each such Global Note may be
exchanged in whole or in part for a 2008 Note of the same series registered, and
any transfer of such Global Note in whole or in part may be registered, in the
name or names 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
3.05 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 3.05 of the
Indenture as to which the Company shall agree, such agreement to be confirmed in
writing to the Trustee.
Section 1.03 Each
2008 Note will bear interest at the rate of 7.95% per annum, from May 13, 2008
or from the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, payable semi-annually in arrears on
May 15 and November 15 in each year (each an “Interest Payment Date”),
commencing November 15, 2008 until the principal thereof is paid or made
available for payment. The interest so payable on a 2008 Note, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name such 2008 Note or
any Predecessor Note is registered at the close of business on the Regular
Record Date for such interest, which shall be the second Business Day preceding
the applicable Interest Payment Date. Any such installment of
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 such 2008 Note or any Predecessor Note is registered at the
close of business on a 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 2008 Notes not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the 2008 Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
2
The
amount of interest payable on the 2008 Notes for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any
Interest Payment Date, Redemption Date or Stated Maturity of any 2008 Note is
not a Business Day, then payment of interest or principal (and premium, if any)
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay), in
each case with the same force and effect as if made on such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
As used
in this Third Supplemental Indenture, “Business Day” means any day,
other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in
The City of New York are authorized or required by law, regulation, or executive
order to remain closed, or (iii) a day on which the Corporate Trust Office of
the Trustee is closed for business.
Section 1.04 Payment
of the principal of, and premium, if any, and interest on the 2008 Notes shall
be payable, and registration of transfer and exchanges of the 2008 Notes may be
effected at the office or agency of the Company maintained for that purpose in
The City and State of New York, which shall be the Corporate Trust Office of the
Trustee or at such other office or agency in The City of New York and State of
New York as may be designated for such purpose by the Company from time to time;
and such payment shall be made 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 at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register. Notices and demands to or
upon the Company in respect of the 2008 Notes and the Indenture may be served at
the office or agency of the Company maintained for that purpose, which initially
shall be the Corporate Trust Office of the Trustee.
Section
1.05 The Company, at its option, may redeem at any
time all, or from time to time, any part of the 2008 Notes on not less than 30
days nor more than 60 days notice as provided in the Indenture (except that,
notwithstanding the provisions of Section 11.04 of the Indenture, any notice of
redemption for the 2008 Notes given pursuant to said Section need not set forth
the Redemption Price but only the manner of calculation thereof) at a Redemption
Price equal to the greater of the following amounts:
(i) 100%
of the principal amount of the 2008 Notes then Outstanding to be so redeemed;
and
(ii) the
sum of the present values of the principal amount and the remaining scheduled
payments of interest on the 2008 Notes to be redeemed (not including any portion
of payments of interest accrued as of the applicable Redemption Date),
discounted to the applicable Redemption Date in accordance with customary market
practice on a semi-annual basis at a rate equal to the sum of the Treasury Rate
plus 0.60 %,
3
plus, in
either of the above cases, accrued and unpaid interest on the principal amount
being redeemed to the applicable Redemption Date.
The
Redemption Price will be calculated by the Independent Investment Banker
assuming a 360-day year consisting of twelve 30-day months.
For
purposes of this Section 1.05, the following terms will have the meanings set
forth below.
“Comparable Treasury Issue”
means the U.S. Treasury security or securities selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
2008 Notes to be redeemed that would be used, at the time of selection and in
accordance with customary market practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of such 2008
Notes.
“Comparable Treasury Price”
means, with respect to any Redemption Date:
(i) the
bid-side for the Comparable Treasury Issue as of the third Business Day
preceding the Redemption Date, as set forth in the daily statistical release (or
any successor release) published by The Wall Street Journal in
the table entitled “Treasury Bonds, Notes, and Bills,” as determined by the
Independent Investment Banker, or
(ii) if
such release (or any successor release) is not published or does not contain
such prices on such Business Day:
(x) the
average of the Reference Treasury Dealer Quotations for that Redemption Date,
after excluding the highest and lowest of the Reference Treasury Dealer
Quotations,
(y) if
the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations so received, or
(z) if
only one Reference Treasury Dealer Quotation is received, such
quotation.
“Independent Investment Banker”
means one of the Reference Treasury Dealers selected by the Trustee after
consultation with the Company.
“Reference Treasury Dealer”
means each of four primary U.S. Government securities dealers in New York City
(each a "Primary Treasury
Dealer"), consisting of (i) Xxxxxx Brothers Inc. (or its affiliate), (ii)
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or its affiliate), and
(iii) two other nationally recognized investment banking firms (or their
affiliates) that are selected by the Company in connection with the particular
redemption, and their respective successors, provided that if any of them ceases
to be a Primary Treasury Dealer, the Company will substitute another nationally
recognized investment banking firm (or its affiliate) that is a Primary Treasury
Dealer.
4
“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third Business Day preceding
that Redemption Date.
“Treasury Rate” means, with
respect to any Redemption Date, the rate per year equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated on the
third Business Day preceding the applicable Redemption Date, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption
Date.
If less
than all of the 2008 Notes are to be redeemed, the Trustee shall select by lot,
on a pro-rata basis or in such other manner as it shall deem appropriate and
fair, the particular 2008 Notes or portions thereof to be
redeemed. Notice of redemption shall be given by mail not less than
30 nor more than 60 days prior to the Redemption Date to the Holders of 2008
Notes to be redeemed (which, as long as the 2008 Notes are held in the
book-entry only system, will be The Depository Trust Company (or its nominee) or
a successor Depositary); provided, however, that the
failure to duly give such notice by mail, or any defect therein, shall not
affect the validity of any proceedings for the redemption of 2008 Notes as to
which there shall have been no such failure or defect. Such notice
may state that such redemption shall be conditional upon receipt by the Paying
Agent or Agents for such 2008 Notes, on or prior to the Redemption Date, of
money sufficient to pay the principal of and premium, if any, and interest, if
any, on such 2008 Notes and that if such money shall not have been so received
such notice shall be of no force or effect and the Company shall not be required
to redeem such 2008 Notes. On and after the Redemption Date (unless
the Company shall default in the payment of the 2008 Notes or portions thereof
to be redeemed at the applicable Redemption Price, together with interest
accrued thereon to such date), interest on the 2008 Notes or the portions
thereof so called for redemption shall cease to accrue.
The
Independent Investment Banker shall give to the Company and the Trustee written
notice of the Redemption Price applicable to the 2008 Notes promptly after its
calculation thereof.
The
Trustee shall be under no duty to inquire into, may conclusively presume the
correctness of, shall be fully protected in relying upon the Independent
Investment Banker’s calculation of any Redemption Price, and shall have no
responsibility for such calculation.
Section
1.06 The 2008 Notes will not be subject to any sinking
fund.
Section
1.07 The 2008 Notes are subject to defeasance pursuant to
and in accordance with Section 13.02 and Section 13.03 of the
Indenture.
5
Section
1.08 Regulatory Statement. Pursuant to the terms of
an order issued by the New Mexico Public Regulation Commission each of the
Company and its corporate parent, PNM Resources, Inc. ("Parent") is required
to include the following covenants in any debt instrument:
The Company and its Parent are being
operated as separate corporate and legal entities. In agreeing to make
loans to Parent, Parent's lenders are relying solely on
the creditworthiness of Parent based on the assets owned by Parent, and the
repayment of the loan will be made solely from the assets of Parent and not from
any assets of the Company; and the Parent's lenders will not take any steps
for the purpose of procuring the appointment of an administrative receiver or
the making of an administrative order for instituting any bankruptcy,
reorganization, insolvency, wind up or liquidation or any like proceeding under
applicable law in respect of the Company.
ARTICLE II
FORM OF 2008 NOTES
Section
2.01 The 2008 Notes and the Trustee’s certificate of
authentication to be endorsed thereon are to be substantially in the following
form:
Form
of 2008 Note.
THIS NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO PUBLIC SERVICE COMPANY OF NEW
MEXICO 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.
Form
of Face of 7.95% Senior Unsecured Notes Due 2018.
6
PUBLIC
SERVICE COMPANY OF NEW MEXICO
7.95 %
Senior Unsecured Notes Due 2018
No.
________
$________
CUSIP
No. ________
ISIN
No. _________
PUBLIC SERVICE COMPANY OF NEW
MEXICO, a corporation duly organized and existing under the laws of New
Mexico (herein called the “Company”, which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________, or registered assigns, the
principal sum of ________ Dollars on May 15, 2018 and to pay interest thereon
from May 13, 2008 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year, commencing November 15, 2008 at the rate of 7.95% per
annum, until the principal hereof is paid or made available for
payment. 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 Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the second Business Day preceding the applicable
Interest Payment Date. 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 Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes 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 on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payment
of the principal of (and premium, if any) and interest on this Note will be made
at the office or agency of the Company maintained for that purpose in The City
of New York, 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 at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
7
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate
seal.
PUBLIC
SERVICE COMPANY OF NEW MEXICO
|
By:
|
_______________________________ |
[Name:]
[Title:]
Attest:
________________________________
[Assistant]
Secretary
Form
of Trustee’s Certificate of Authentication.
CERTIFICATION
OF AUTHENTICATION
This is
one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
|
|
THE
BANK OF NEW YORK
TRUST
COMPANY, N.A.,
|
as Trustee
|
By:
|
_______________________________ |
Authorized
Signatory
Form
of Reverse of 7.95% Senior Unsecured Notes Due 2018.
This Note
is one of a duly authorized issue of senior notes of the Company (herein called
the “Notes”), issued and
to be issued in one or more series under an Indenture, dated as of August 1,
1998, as supplemented (herein, together with any amendments thereto, called the
“Indenture”, which term
shall have the meaning assigned to it in such instrument), between the Company
and The Bank of New York Trust Company, N.A. (as successor to JPMorgan Chase
Bank, N.A. (formerly JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank))), as Trustee (herein called the “Trustee”, which term includes
any successor trustee under the Indenture), and reference is hereby made to the
Indenture, including the Third Supplemental Indenture, dated as of May 13, 2008,
creating the series designated on the face hereof, for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated on the face hereof to be authenticated and
delivered in an unlimited aggregate principal amount.
8
The
Company, at its option, may redeem all, or from time to time, any part of the
Notes of this series on not less than 30 days nor more than 60 days notice as
provided in the Indenture (except that, notwithstanding the provisions of
Section 11.04 of the Indenture, any notice of redemption for the Notes of this
series given pursuant to said Section need not set forth the Redemption Price
but only the manner of calculation thereof) at a Redemption Price equal to the
greater of the following amounts:
(i) 100%
of the principal amount of the Notes of this series then Outstanding to be so
redeemed; and
(ii) the
sum of the present values of the principal amount and the remaining scheduled
payments of interest on the Notes of this series to be redeemed (not including
any portion of payments of interest accrued as of the applicable Redemption
Date), discounted to the applicable Redemption Date in accordance with customary
market practice on a semi-annual basis at a rate equal to the sum of the
Treasury Rate plus 0.60 %,
plus, in
either of the above cases, accrued and unpaid interest on the principal amount
being redeemed to the applicable Redemption Date.
The
Redemption Price for the Notes of this series will be calculated by the
Independent Investment Banker assuming a 360-day year consisting of twelve
30-day months.
For
purposes of calculating the Redemption Price pursuant to the foregoing optional
redemption provisions, the following terms will have the meanings set forth
below.
“Comparable Treasury Issue”
means the U.S. Treasury security or securities selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
Notes of this series to be redeemed that would be used, at the time of selection
and in accordance with customary market practice, in pricing new issues of
corporate debt securities of a comparable maturity to the remaining term of such
Notes.
“Comparable Treasury Price”
means, with respect to any Redemption Date:
(i) the
bid-side for the Comparable Treasury Issue as of the third Business Day
preceding the Redemption Date, as set forth in the daily statistical release (or
any successor release) published by The Wall Street Journal in
the table entitled “Treasury Bonds, Notes, and Bills,” as determined by the
Independent Investment Banker, or
(ii) if
such release (or any successor release) is not published or does not contain
such prices on such Business Day:
9
(x) the
average of the Reference Treasury Dealer Quotations for that Redemption Date,
after excluding the highest and lowest of the Reference Treasury Dealer
Quotations,
(y) if
the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations so received, or
(z) if
only the Reference Treasury Dealer Quotation is received, such
quotation.
“Independent Investment Banker”
means one of the Reference Treasury Dealers selected by the Trustee after
consultation with the Company.
“Reference Treasury Dealer”
means each of four primary U.S. Government securities dealers in New York City
(each a "Primary Treasury
Dealer"), consisting of (i) Xxxxxx Brothers Inc. (or its affiliate), (ii)
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or its affiliate), and
(iii) two other nationally recognized investment banking firms (or their
affiliates) that are selected by the Company in connection with the particular
redemption, and their respective successors, provided that if any of them ceases
to be a Primary Treasury Dealer, the Company will substitute another nationally
recognized investment banking firm (or its affiliate) that is a Primary Treasury
Dealer.
“Reference Treasury Dealer
Quotations” means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third Business Day preceding
that Redemption Date.
“Treasury Rate” means, with
respect to any Redemption Date, the rate per year equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated on the
third Business Day preceding the applicable Redemption Date, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption
Date.
The
Trustee shall be under no duty to inquire into, may conclusively presume the
correctness of, shall be fully protected in relying upon the Independent
Investment Banker’s calculation of any Redemption Price, and shall have no
responsibility for such calculation.
The Notes
of this series will not be subject to any sinking fund.
In the
event of redemption of this Note in part only, a new Note or Notes of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
10
The
Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note or certain restrictive covenants and Events of Default
with respect to this Note, in each case upon compliance with certain conditions
set forth in the Indenture.
If an
Event of Default with respect to Notes of this series shall occur and be
continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the
Indenture.
The
Indenture permits the Company and the Trustee to enter into one or more
supplemental indentures for certain purposes as therein provided without the
consent of any Holders. In addition, the Indenture permits, with
certain exceptions as therein provided, the Company and the Trustee to enter
into one or more supplemental indentures for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, the Indenture with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of all series then Outstanding under the
Indenture, considered as one class; provided, however, that if there shall be
Notes of more than one series Outstanding under the Indenture and if a proposed
supplemental indenture shall directly affect the rights of the Holders of Notes
of one or more, but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding Notes of
all series so directly affected, considered as one class, shall be required; and
provided, further, that if the Notes of any series shall have been issued in
more than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Notes of one or more, but less than all, of
such Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Notes of all Tranches so directly affected,
considered as one class, shall be required. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Notes of each, or all series, as the case may be, then Outstanding
under the Indenture, on behalf of the Holders of all Notes of such series, to
waive compliance by the Company with certain provisions of the Indenture and
permitting the Holders of specified percentages in principal amount of the Notes
of each series Outstanding under the Indenture, on behalf of the Holders of all
Notes of such series, to waive certain past defaults under the Indenture and
their consequences, provided, however, that if any such past default affects
more than one series of Notes, the Holders of a majority in aggregate principal
amount of the Outstanding Notes of all such series, considered as one class,
shall have the right to waive such past default, and not the Holders of the
Notes of any one such series. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Note 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 thereunder unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Notes of
this series, the Holders of not less than a majority in aggregate principal
amount of the Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing 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
Notes of all series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing 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 Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
11
No
reference herein to the Indenture and no provision of this Note 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
Note 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 Note is registrable in the Note Register, upon surrender of
this Note 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 Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes 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 Notes
of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes 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 Note 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 Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
As used
in this Note, “Business Day” means any day other than (i) a Saturday or a
Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law, regulation, or executive order to remain closed,
or (iii) a day on which the Corporate Trust Office of the Trustee is closed for
business. All other terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
12
ARTICLE III
ORIGINAL ISSUE OF
2008 NOTES
Section
3.01 2008 Notes in the aggregate principal amount
of $350,00,000, and additional 2008 Notes as in Section 1.01 of this
Supplemental Indenture provided, may, upon execution of this Third Supplemental
Indenture, or from time to time thereafter, be executed on behalf of the Company
by any officer or employee authorized to do so by a Board Resolution, under its
corporate seal affixed thereto or reproduced thereon attested by its Secretary
or by one of its Assistant Secretaries and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
2008 Notes in accordance with a Company Order delivered to the Trustee by the
Company, all pursuant to and in accordance with Section 3.03 of the Indenture,
as heretofore supplemented.
ARTICLE IV
PAYING AGENT AND
REGISTRAR
Section
4.01 The Bank of New York Trust Company, N.A. will be the
Paying Agent and Note Registrar for the 2008 Notes.
ARTICLE
V
AMENDMENT
Section
5.01. The Indenture, as heretofore supplemented, is hereby
amended by deleting the defined term “Corporate Trust Office” in Section 1.01 in
its entirely and replacing it with the following:
“‘Corporate Trust
Office’ means
the office of the Trustee at which at any particular time its corporate trust
business in Los Angeles, California shall be principally administered, which
office as of the date of this instrument is located at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, except that with respect to
presentation of Notes for payment or for registration of transfer or exchange,
such term shall mean the office or agency of the Trustee at which at any
particular time its corporate agency business shall be conducted, which office
at the date of this instrument is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; Attention: Corporate Trust Division - Corporate Finance Unit, or, in
the case of any of such offices or agency, such other address as the Trustee may
designate from time to time by notice to the Holders and the
Company.”
ARTICLE VI
SUNDRY
PROVISIONS
Section
6.01 Except as otherwise expressly
provided in this Third Supplemental Indenture or in the form of 2008 Notes or
otherwise clearly required by the context hereof or thereof, all terms used
herein or in said form of the 2008 Notes that are defined in the Indenture shall
have the several meanings respectively assigned to them thereby.
13
Section
6.02 The Indenture, as heretofore
supplemented and as supplemented by this Third Supplemental Indenture, is in all
respects ratified and confirmed, and this Third Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
Section
6.03 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 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 Third Supplemental Indenture or for or in
respect of the recitals contained herein, all of which recitals are made by the
Company solely. In general, each and every term and condition contained in
Article VI of the Indenture shall apply to and form part of this Third
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 Third
Supplemental Indenture.
Section
6.04 This Third Supplemental Indenture 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.
Section
6.05 This Third Supplemental Indenture
shall be governed by and construed in accordance with the law of the State of
New York (including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute).
14
IN WITNESS WHEREOF, the
parties hereto have caused this Third Supplemental Indenture to be duly executed
as of the day and year first above written.
PUBLIC
SERVICE COMPANY OF NEW MEXICO
By: /s/ Xxxxx X.
Xxxx
Xxxxx X. Xxxx
Vice
President and Treasurer
Attest:
/s/ Xxx Xxxxxx
Assistant Secretary
THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee
By: /s/ Xxxxxxx
Xxxxxx
Xxxxxxx Xxxxxx
Assistant Vice President
