Exhibit 4(m)(3)
SUPPLEMENTAL INDENTURE NO. 2
TUCSON ELECTRIC POWER COMPANY
TO
BANK OF MONTREAL TRUST COMPANY,
TRUSTEE
Dated as of December 1, 1997
Supplemental to Indenture of Mortgage and Deed of Trust,
dated as of December 1, 1992
Creating A Series of Bonds Designated
Second Mortgage Bonds, Collateral Series B
This instrument constitutes a mortgage, a deed of trust and a security
agreement.
SUPPLEMENTAL INDENTURE NO. 2, dated as of December 1, 1997, between TUCSON
ELECTRIC POWER COMPANY (hereinafter sometimes called (the "Company"), a
corporation organized and existing under the laws of the State of Arizona,
having its principal office at 000 Xxxx Xxxxx Xxxxxx, in the City of Tucson,
Arizona, as trustor, and BANK OF MONTREAL TRUST COMPANY, a banking corporation
organized and existing under the laws of the State of New York and having its
principal office at 00 Xxxx Xxxxxx, in the Borough of Manhattan, The City of
New York, New York, as trustee (hereinafter sometimes called the "Trustee"),
under the Indenture of Mortgage and Deed of Trust, dated as of December 1, 1992
(hereinafter called the "Original Indenture"), as heretofore supplemented, this
Supplemental Indenture No. 2 being supplemental thereto (the Original Indenture
as heretofore supplemented, and as supplemented hereby, and as it may from time
to time be further supplemented, modified, altered or amended by any
supplemental indenture entered into in accordance with and pursuant to the
provisions thereof, is hereinafter called the "Indenture").
RECITALS OF THE COMPANY
WHEREAS the Original Indenture was authorized, executed and delivered by
the Company to provide for the issuance from time to time of its Bonds (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as therein contemplated, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Bonds; and
WHEREAS, the Company proposes to establish a series of Bonds designated
"Second Mortgage Bonds, Collateral Series B" and to be limited in aggregate
principal amount (except as contemplated in clause (b) of Section 2 of Article
II of the Original Indenture) to $543,875,000, such series of Bonds and such
Bonds to be hereinafter sometimes called, respectively, "Series 2" and "Series
2 Bonds"; and
WHEREAS, all acts and proceedings required by law and by the articles of
incorporation and by-laws of the Company, including all action requisite on the
part of its shareholders, directors and officers, necessary to make the Series
2 Bonds, when executed by the Company, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal obligations of the
Company, and to constitute this Supplemental Indenture a valid, binding and
legal instrument, in accordance with its and their terms, have been done and
taken; and the execution and delivery of this Supplemental Indenture No. 2
have been in all respects duly authorized.
GRANTING CLAUSES
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 2 WITNESSETH, that, in
order to secure the payment of the principal of and premium, if any, and
interest, if any, on all Bonds at any time Outstanding under the Indenture
according to their tenor, purport and effect, and to secure the performance and
observance of all the covenants and conditions therein and herein contained
(except any covenant of the Company with respect to the refund or reimbursement
of taxes, assessments or other governmental charges on account of the ownership
of the Bonds of any series or the income derived therefrom, for which the
Holders of the Bonds shall look only to the Company and not to the property
hereby mortgaged or pledged), and to declare the terms and conditions upon and
subject to which the Series 2 Bonds are to be issued, and for and in
consideration of the premises and of the mutual covenants herein contained and
of the purchase and acceptance of the Bonds by the Holders thereof, and of the
sum of $1 duly paid to the Company by the Trustee at or before the ensealing
and delivery hereof, and for other good and valuable consideration, the receipt
and sufficiency whereof are hereby acknowledged, the Company has executed and
delivered this Indenture, and by these presents does grant, bargain, sell,
release, convey, assign, transfer, mortgage, pledge, set over and confirm unto
the Trustee, and grant to the Trustee a security interest in:
All and singular the premises, property, assets, rights and
franchises of the Company (except Excepted Property), whether now or
hereafter owned, constructed or acquired, of whatever character and
wherever situated including, among other things (but reference to or
enumeration of any particular kinds, classes or items of property
shall not be deemed to exclude from the operation and effect of this
Indenture any kind, class or item not so referred to or enumerated),
all right, title and interest of the Company in and to the property
described as granted in "Schedule A" attached to this Supplemental
Indenture No. 2 and made part of these Granting Clauses to the same
extent as if fully set forth in the same, and all plants for the
generation of electricity by water, steam and/or other power; all
power houses, substations, transmission lines, distributing systems;
all offices, buildings and structures, and the equipment thereof; all
machinery, engines, boilers, dynamos, machines, regulators, meters,
transformers, generators and motors; all appliances whether
electrical, gas or mechanical, conduits, cables and lines; all pipes,
service pipes, fittings, valves and connections, poles, wires, tools,
implements, apparatus, furniture, and chattels; all municipal
franchises and other franchises; all lines for the transmission and/or
distribution of electric current, including towers, poles, wires,
cables, pipes, conduits, street lighting systems and all apparatus for
use in connection therewith; all real estate, lands, leaseholds; all
easements, servitudes, licenses, permits, rights, powers, franchises,
privileges, rights-of-way and other rights in or relating to real
estate or the occupancy of the same and all the right, title and
interest of the Company in and to all other property of any kind or
nature appertaining to and/or used and/or occupied and/or enjoyed in
connection with any property hereinbefore described; it being the
intention of the parties that all property of every kind, real,
personal or mixed (including, but not limited to, all property of the
types hereinbefore described), other than Excepted Property, which may
be acquired by the Company after the date hereof, shall, immediately
upon the acquisition thereof by the Company, to the extent of such
acquisition, and without any further conveyance or assignment, become
and be subject to the direct lien of the Indenture as fully and
completely as though now owned by the Company and described in said
"Schedule A"; it further being the intention of the paries, however,
that the lien of and security interest granted by this Indenture shall
not result in the Trustee having greater rights with respect to any
property of the Company, real, personal or mixed (including, but not
limited to, leasehold interests in property) than the rights of the
Company with respect to such property.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid premises,
property, assets, rights and franchises or any part thereof, with the reversion
and reversions, remainder and remainders, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid premises, property,
assets, rights and franchises and every part and parcel thereof.
Subject, however, to the reservations, exceptions, limitations and
restrictions contained in the several deeds, leases, servitudes, contracts,
decrees, judgments, or other instruments through which the Company acquired or
claims title to or enjoys the use of the aforesaid properties; and subject also
to such easements, leases, reservations, servitudes, reversions and other
rights and privileges of others and such mortgages, liens and other
encumbrances in, on, over, across or through said properties as existed at the
time of the acquisition of such properties by the Company or as have been
granted by the Company to other persons at or prior to the time of the issuance
and delivery of the Bonds of the Initial Series, including, but not limited to,
the lien of the 1941 Mortgage and the security interest created thereby; and
subject also to Permitted Encumbrances and, as to any property acquired by the
Company after the time of the issuance and delivery of the Bonds of the Initial
Series, to any easements, leases, reservations, servitudes, reversions and
other rights and privileges of others and mortgages, liens or other
encumbrances thereon existing, and to any mortgages, liens and other
encumbrances for unpaid portions of the purchase money placed thereon, at the
time of such acquisition, it being understood that with respect to any such
after-acquired property the Lien of the Indenture (as hereinafter defined)
shall at all times be junior, subject and subordinate to the lien of the 1941
Mortgage and the security interest created thereby; and subject also to the
provisions of Article XI of the Original Indenture;
TO HAVE AND TO HOLD the Trust Estate and all and singular the lands,
properties, estates, rights, franchises, privileges and appurtenances hereby
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over and confirmed, together with all the appurtenances thereunto
appertaining, unto the Trustee and its successors and assigns, forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit,
security and protection of those who from time to time shall hold the Bonds
authenticated and delivered hereunder and duly issued by the Company, without
any discrimination, preference or priority of any one Bond over any other by
reason of priority in the time of issue, sale or negotiation thereof or
otherwise, except as provided in Section 2 of Article IV of the Original
Indenture, so that, subject to said provisions, each and all of said Bonds
shall have the same right, lien and privilege under the Indenture and shall be
equally secured hereby (except as any sinking, amortization, improvement,
renewal or other fund, established in accordance with the provisions of the
Indenture, may afford additional security for the Bonds of any particular
series), and shall have the same proportionate interest and share in the Trust
Estate, with the same effect as if all of the Bonds had been issued, sold and
negotiated simultaneously on the date of the delivery hereof; and in trust for
enforcing payment of the principal of the Bonds, and premium, if any, and
interest, if any, thereon, according to the tenor, purport and effect of the
Bonds and of the Indenture, and for enforcing the terms, provisions, covenants
and agreements herein and in the Bonds set forth;
UPON CONDITION that, until the happening of a Default, the Company shall
be suffered and permitted to possess, use and enjoy the Trust Estate (except
money, securities and other personal property pledged or deposited with or
required to be pledged or deposited with the Trustee hereunder) and to receive
and use the rents, issues, income, revenues, earnings and profits therefrom,
all as more specifically provided in Section 1 of Article VII of the Original
Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions hereinafter set forth and declared.
ARTICLE I
ADDITIONAL DEFINITIONS
SECTION 1. APPLICABILITY OF ARTICLE
For all purposes of this Supplemental Indenture No. 2, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
in this Article shall have the meanings herein specified and include the plural
as well as the singular.
SECTION 2. ADDITIONAL DEFINITIONS.
"ADMINISTRATIVE AGENT" means Toronto Dominion (Texas), Inc., in its
capacity as Administrative Agent under the Credit Agreement.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of December 30,
1997, among the Company, the lenders parties thereto, the issuing banks parties
thereto, The Bank of New York, as Syndication Agent, Societe Generale, as
Documentation Agent, and Toronto Dominion (Texas), Inc., as Administrative
Agent, as amended, supplemented or otherwise modified from time to time.
"INTEREST PAYMENT DATE" means the last day of each March, June, September
and December; provided, however, that the first interest payment date shall be
March 31, 1998.
"MATURITY" means the date on which the principal of the Series 2 Bonds
becomes due and payable, whether at stated maturity, upon redemption or
acceleration, or otherwise.
The following terms shall have the meanings specified in the Credit
Agreement: "ALTERNATE BASE RATE", "COMMITMENTS", "ISSUING BANK", "LETTER OF
CREDIT", "LOANS", "MATURITY DATE" AND "OBLIGATIONS".
A copy of the Credit Agreement is filed at the office of the
Administrative Agent at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 and at the
office of the Company at 000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
ARTICLE II
SERIES 2 BONDS
There is hereby established a series of Bonds having the following terms
and characteristics (the lettered subdivisions set forth below corresponding to
the lettered subdivisions of Section 2 of Article II of the Indenture):
(a) the title of the Bonds of such series shall be "Second Mortgage
Bonds, Collateral Series B" (such Bonds being hereinafter sometimes called
the "Series 2 Bonds");
(b) the aggregate principal amount of Series 2 Bonds which may be
authenticated and delivered under the Indenture shall be limited to
$543,875,000, except as contemplated in subdivision (b) of Section 2 of
Article II of the Original Indenture;
(c) not applicable;
(d) the Series 2 Bonds shall mature on December 30, 2004;
(e) during the period from and including the date of the first
authentication and delivery of the Series 2 Bonds to and including the day
next preceding the first Interest Payment Date, the Series 2 Bonds shall
bear interest at the rate of ten per centum (10%) per annum; thereafter,
the Series 2 Bonds shall bear interest at a rate equal to the Alternate
Base Rate from time to time in effect plus 400 basis points; interest on
the Series 2 Bonds shall accrue from and including the date of the first
authentication and delivery of the Series 2 Bonds, except as otherwise
provided in the form of bond attached hereto as Exhibit A; interest on the
Series 2 Bonds shall be payable on each Interest Payment Date and at
Maturity, and the Regular Record Date for the interest payable on each
Interest Payment Date shall be the day next preceding such Interest
Payment Date; interest payable at Maturity shall be paid to the Person to
whom principal shall be paid; and interest on the Series 2 Bonds during
any period for which payment is made shall be computed in accordance with
the Credit Agreement;
(f) the office of the Trustee in New York, New York, shall be the
office or agency of the Company in The City of New York where (i) the
principal of the Series 2 Bonds and interest payable thereon at Maturity
shall be payable upon presentation thereof, (ii) notices, presentations
and demands to or upon the Company in respect of the Series 2 Bonds or the
Indenture may be served or made and (iii) Series 2 Bonds may be
surrendered for registration of transfer or exchange; the principal office
of the Company in Tucson, Arizona shall be an additional financial office
or agency where the principal of the Series 2 Bonds and interest payable
thereon at Maturity shall be payable upon presentation thereof; interest
payable on the Series 2 Bonds prior to Maturity shall be paid by the
Company directly to the Holders thereof.
(g) the Series 2 Bonds shall not be redeemable, in whole or in part,
at the option of the Company;
(h) upon (i) the occurrence of an Event of Default under the Credit
Agreement, and further upon the condition that, in accordance with the
terms of the Credit Agreement, the Commitments shall have been or shall
have terminated and the Loans shall have been declared to be or shall have
otherwise become due and payable immediately and the Administrative Agent
shall have delivered to the Company a notice demanding redemption of the
Series 2 Bonds which notice states that it is being delivered pursuant to
Article VII of the Credit Agreement, (ii) the occurrence of an Event of
Default under clause (h) or (i) of Article VII of the Credit Agreement, or
(iii) the Maturity Date, then all Series 2 Bonds shall be redeemed
immediately at the principal amount thereof plus accrued interest to the
date of redemption.
(i) the Series 2 Bonds shall be issued in denominations of $1,000
and any amount in excess thereof;
(j) not applicable;
(k) not applicable;
(l) not applicable;
(m) not applicable;
(n) no service charge shall be made for the registration of transfer
or exchange of Series 2 Bonds;
(o) (i) the Series 2 Bonds are to be issued and delivered to the
Administrative Agent in order to provide collateral security for the
obligation of the Company under the Credit Agreement to pay the
Obligations, to the extent and subject to the limitations set forth in
clauses (ii) and (iii) of this subdivision.
(ii) the obligation of the Company to pay interest on the Series
2 Bonds on any Interest Payment Date prior to Maturity (a) shall be deemed
to have been satisfied and discharged in full in the event that all
amounts then due in respect of the Obligations shall have been paid or
(b) shall be deemed to remain unsatisfied in an amount equal to the
aggregate amount then due in respect of the Obligations and remaining
unpaid (not in excess, however, of the amount otherwise then due in
respect of interest on the Series 2 Bonds).
(iii) the obligation of the Company to pay the principal of
and accrued interest on the Series 2 Bonds at or after Maturity (x) shall
be deemed to have been satisfied and discharged in full in the event that
all amounts then due in respect of the Obligations shall have been paid and
no Letter of Credit shall remain outstanding or (y) shall be deemed to
remain unsatisfied in an amount equal to the aggregate amount then due in
respect of the Obligations and remaining unpaid plus the aggregate stated
amount of the outstanding Letters of Credit (not in excess, however, of
the amount otherwise then due in respect of principal of and accrued
interest on the Series 2 Bonds).
(iv) the Trustee shall be entitled to presume that the
obligation of the Company to pay the principal of and interest on the
Series 2 Bonds as the same shall become due and payable shall have been
fully satisfied and discharged unless and until it shall have received a
written notice from the Administrative Agent, signed by an authorized
officer thereof,stating that the principal of and/or interest on the
Series 2 Bonds has become due and payable and has not been fully paid, and
specifying the amount of funds required to make such payment;
(p) in the event of an application by the Administrative Agent for
payment or for a substituted Series 2 Bond pursuant to Section 11 of
Article II of the Original Indenture, the Administrative Agent shall not
be required to provide any indemnity or pay any expenses or charges as
contemplated in said Section 11; and
(q) the Series 2 Bonds shall have such other terms as are set forth
in the form of bond attached hereto as Exhibit A, which form is hereby
designated as the form of the Series 2 Bonds.
ARTICLE III
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. 2 is a supplement to the Original
Indenture. As heretofore supplemented and further supplemented by this
Supplemental Indenture No. 2, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture as heretofore
supplemented and this Supplemental Indenture No. 2 shall together constitute
one and the same instrument.
IN WITNESS WHEREOF, Tucson Electric Power Company has caused its corporate
name to be hereunto affixed, and this instrument to be signed by one of its
Vice Presidents, and its corporate seal to be hereunto affixed and attested by
one of its Assistant Secretaries for and in its behalf; and Bank of Montreal
Trust Company, in evidence of its acceptance of the trust hereby created, has
caused its corporate name to be hereunto affixed, and this instrument to be
signed by one of its Vice Presidents and its corporate seal to be hereunto
affixed and attested by one of its Vice Presidents for and in its behalf, all
as of the day and year first above written.
TUCSON ELECTRIC POWER COMPANY
By
--------------------------------------------
Vice President
Attest:
-------------------------------
Assistant Secretary
------------------------------
BANK OF MONTREAL TRUST COMPANY,
Trustee
By
--------------------------------------------
Vice President
Attest:
------------------------------
Vice President
STATE OF ARIZONA )
)
) ss.:
COUNTY OF PIMA )
This instrument was acknowledged before me this --- day of December 1997
by XXXXX X. XXXXXX, as Vice President, and XXXXXXX XXXXXX, as Assistant
Secretary, of TUCSON ELECTRIC POWER COMPANY, an Arizona corporation, known to
me to be the individuals who executed this instrument, and known to me to be a
Vice President and an Assistant Secretary, respectively, of said corporation,
and who personally acknowledged before me and stated that they executed said
instrument on behalf of said corporation for the purposes and consideration
therein expressed.
-----------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
This instrument was acknowledged before me this 22nd day of December 1997
by Xxxxxxx Xxxxxxxx, as Vice President, and Xxx Xxxxxxx, as Vice President, of
BANK OF MONTREAL TRUST COMPANY, a New York banking corporation, known to me to
be the individuals who executed this instrument, and known to me to be Vice
Presidents of said corporation, and who personally acknowledged before me and
stated that they executed said instrument on behalf of said corporation for the
purposes and consideration therein expressed.
--------------------------------------
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 00-0000000
QUALIFIED IN KINGS COUNTY
COMMISSION EXPIRES NOVEMBER 30, 1998
Exhibit A
[Form of Bond]
This bond is non-transferable,
except to a successor Administrative Agent under the
Credit Agreement referred to herein.
No. --------------- $---------------------
TUCSON ELECTRIC POWER COMPANY
SECOND MORTGAGE BOND, COLLATERAL SERIES B
DUE DECEMBER 30, 2004
TUCSON ELECTRIC POWER COMPANY, a corporation of the State of Arizona
(hereinafter sometimes called the Company), for value received, promises to pay
to
as Administrative Agent under the Credit Agreement hereinafter referred to or
registered assigns, the principal sum of
DOLLARS
on December 30, 2004, in coin or currency of the United States of America which
at the time of payment shall be legal tender for the payment of public and
private debts, at the office or agency of the Company in The City of New York,
or in the City of Tucson, Arizona, upon presentation hereof, and quarterly, on
March 31, June 30, September 30 and December 31 in each year, commencing March
31, 1998 (each an "Interest Payment Date"), and at Maturity (as defined in
Supplemental Indenture No. 2 hereinafter referred to), to pay interest thereon
in like coin or currency at the rate specified below, from the Interest Payment
Date next preceding the date of this bond (unless this bond be dated on an
Interest Payment Date, in which case from the date hereof; or unless this bond
be dated prior to the first interest payment date, in which case from and
including the date of the first authentication and delivery of the bonds of
this series), until the Company's obligation with respect to such principal
sum shall be discharged.
During the period from and including the date of the first authentication
and delivery of the bonds of this series to and including the day next
preceding the first Interest Payment Date, the bonds of this series shall bear
interest at the rate of ten per centum (10%) per annum; thereafter, the bonds
of this series shall bear interest at a rate equal to the Alternate Base Rate
(as defined in Supplemental Indenture No. 2 hereinafter referred to) from time
to time in effect plus 400 basis points. Interest on the bonds of this series
during any period for which payment is made shall be computed in accordance
with the Credit Agreement.
This bond is one of an issue of bonds of the Company, issued and to be
issued in one or more series under and equally and ratably secured (except as
any sinking, amortization, improvement, renewal or other fund, established in
accordance with the provisions of the indenture hereinafter mentioned, may
afford additional security for the bonds of any particular series) by the
Indenture of Mortgage and Deed of Trust, dated as of December 1, 1992 (the
"Original Indenture"), from the Company to Bank of Montreal Trust Company,
trustee (the "Trustee"), as supplemented by two supplemental indentures
including Supplemental Indenture No. 2, dated as of December 1, 1997 (the
Original Indenture, as so supplemented, and such Supplemental Indenture being
hereinafter called the "Indenture" and "Supplemental Indenture No. 2",
respectively), to which Indenture reference is hereby made for a description of
the property mortgaged and pledged, the nature and extent of the security
provided by the Indenture, the rights and limitations of rights of the Company,
the Trustee and the holders of said bonds with respect to the security provided
by the Indenture, the powers, duties and immunities of the Trustee, the terms
and conditions upon which such bonds are and are to be secured, and the
circumstances under which additional bonds may be issued. The acceptance of
this bond shall be deemed to constitute the consent and agreement by the holder
hereof to all of the terms and provisions of the Indenture. This bond is one
of a series of bonds designated as the Second Mortgage Bonds, Collateral Series
B, of the Company.
The Indenture permits, with certain exceptions as therein provided, 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
sixty per centum (60%) in aggregate principal amount of the bonds of all series
then outstanding under the Indenture, considered as one class; provided,
however, that if there shall be bonds of more than one series outstanding under
the Indenture and if a proposed supplemental indenture shall directly affect
the rights of the holders of bonds of one or more, but less than all, of such
series, then the consent only of the holders of bonds in aggregate principal
amount of the outstanding bonds of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the bonds 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 holder of bonds
of one or more, but less than all, of such tranches, then the consent only of
the holders of bonds in aggregate principal amount of the outstanding bonds of
all tranches so directly affected, considered as one class, shall be required;
and provided, further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the consent of any
holders of bonds. Any such consent by the holder of this bond shall be
conclusive and binding upon such holder and upon all future holders of this
bond and of any bond issued upon the registration of transfer hereof or in
exchange therefor or in lieu hereof, whether or not notation of such consent
is made upon this bond.
The Company has issued and delivered the bonds of this series to Toronto
Dominion (Texas), Inc., as Administrative Agent (the "Administrative Agent")
under, the Credit Agreement, dated as of December 30, 1997, among the Company,
the lenders parties thereto, the issuing banks parties thereto, The Bank of New
York, as Syndication Agent, Societe Generale, as Documentation Agent, and
Toronto Dominion (Texas), Inc., as Administrative Agent, as amended,
supplemented or otherwise modified from time to time (the "Credit Agreement")
in order to provide collateral security for the obligation of the Company
thereunder to pay the Obligations (as defined in Supplemental Indenture No. 2).
Upon (i) the occurrence of an Event of Default under the Credit
Agreement,and further upon such additional conditions as are set forth in
subdivision (h) of Article II of Supplemental Indenture No. 2, or (ii) the
Maturity Date under the Credit Agreement, then all bonds of this series shall
be redeemed immediately at the principal amount thereof plus accrued interest
to the date of redemption.
The obligation of the Company to pay interest on the bonds of this Series
on any Interest Payment Date prior to Maturity (a) shall be deemed to have been
satisfied and discharged in full in the event that all amounts then due in
respect of the Obligations shall have been paid or (b) shall be deemed to
remain unsatisfied in an amount equal to the aggregate amount then due in
respect of the Obligations and remaining unpaid (not in excess, however, of the
amount otherwise then due in respect of interest on the bonds of this Series).
The obligation of the Company to pay the principal of and accrued interest
on the bonds of this series at or after Maturity (x) shall be deemed to have
been satisfied and discharged in full in the event that all amounts then due in
respect of the Obligations shall have been paid and no Letter of Credit (as
defined in Supplemental Indenture No. 2) shall remain outstanding or (y) shall
be deemed to remain unsatisfied in an amount equal to the aggregate amount then
due in respect of the Obligations and remaining unpaid plus the aggregate
stated amount of the outstanding Letters of Credit (not in excess, however, of
the amount otherwise then due in respect of principal of and accrued interest
on the bonds of this series).
The principal of this bond and the interest accrued hereon may become or
be declared due and payable before the stated maturity hereof, on the
conditions, in the manner and at the times set forth in the Indenture, upon the
happening of a default as therein provided.
This bond is non-transferable except as required to effect transfer to any
successor administrative agent under the Credit Agreement, any such transfer to
be made at the office or agency of the Company in The City of New York, upon
surrender and cancellation of this bond, and upon any such transfer a new bond
of this series, for the same aggregate principal amount and having the same
stated maturity date, will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer, the Company and the
Trustee may deem and treat the person in whose name this bond is registered as
the absolute owner hereof for the purpose of receiving payment and for all
other purposes. This bond, alone or with other bonds of this series, may in
like manner be exchanged at such office or agency for one or more bonds of this
series of the same aggregate principal amount and having the same stated
maturity date and interest rate, all as provided in the Indenture.
No recourse shall be had for the payment of the principal of or interest
on this bond, or for any claim based hereon or otherwise in respect hereof or
of the Indenture, against any incorporator, shareholder, director or officer,
as such, past, present or future, of the Company or of any predecessor or
successor corporation, either directly or through the Company or any
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise howsoever (including, without
limiting the generality of the foregoing, any proceeding to enforce any claimed
liability of shareholders of the Company, based upon any theory of disregarding
the corporate entity of the Company or upon any theory that the Company was
acting as the agent or instrumentality of the shareholders); all such liability
being, by the acceptance hereof and as a part of the consideration for the
issuance hereof, expressly waived and released by every holder hereof, and
being likewise waived and released by the terms of the Indenture under which
this bond is issued, as more fully provided in said Indenture.
This bond shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by Bank of
Montreal Trust Company, or its successor, as Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this bond to be signed in its
name by the manual or facsimile signature of its President or one of its Vice
Presidents, and its corporate seal, or a facsimile thereof, to be impressed or
imprinted hereon and attested by the manual by the manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated
TUCSON ELECTRIC POWER COMPANY
By:
----------------------------------------------
Attest:
-------------------------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the bonds, of the series designated therein, described in
the within-mentioned Indenture.
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
----------------------------------------------
SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
GENERIC DESCRIPTION
All electric generating plants, gas generating plant, gas holders, steam
plant, gas regulating stations, substations and other properties of the
Company, including all power houses, transmission lines, buildings, pipes,
structures and works, and the lands of the Company on which the same are
situated, and all the Company's lands, easements, rights, rights-of-way, water
rights, rights to the use of water, including all of the Company's right, title
and interest in and to any and all decrees therefor, permits, franchises,
consents, privileges,licenses, poles, towers, wires, switch racks, insulators,
pipes, machinery,engines, boilers, motors, regulators, meters, tools,
appliances, equipment, appurtenances and supplies, forming a part of or
appertaining to said plants, holders, sites, stations or other properties, or
any of them, or used or enjoyed, or capable of being used or enjoyed in
conjunction or connection therewith; and
All electric substations and substation sites of the Company including all
buildings, structures, towers, poles, lines, and all equipment, appliances and
devices for transforming, converting and distributing electric energy, and all
the right, title and interest of the Company in and to the land on which the
same are situated, and all of the Company's lands, easements, rights-of-way,
rights, franchises, privileges, machinery, equipment, fixtures, appliances,
devices, appurtenances and supplies forming a part of said substation or any of
them, or used or enjoyed, or capable of being used or enjoyed, in conjunction
or connection therewith; and
All warehouses, buildings, structures, works and sites and the Company's
landson which the same are situated, and all easements, rights-of-way, permits,
franchises, consents, privileges, licenses, machinery, equipment, furniture and
fixtures, appurtenances and supplies forming a part of said warehouses,
buildings, structures, works and sites, or any of them, or used or enjoyed or
capable of being used or enjoyed in connection or conjunction therewith; and
All electric distribution systems of the Company, including towers, poles,
wires, insulators, appliances, devices, appurtenances and equipment, and all
the Company's other property, real, personal or mixed, forming a part of, or
used, occupied or enjoyed in connection with or in any way appertaining to said
distribution systems, or any of them,together with all of the Company's rights-
of-way, easements, permits, privileges, municipal or other franchises,licenses,
consents and rights for or relating to the construction, maintenance or
operation thereof through, over, under or upon any public streets or highways,
or public or private lands; and also all branches, extensions, improvements and
developments of or appertaining to or connected with said electric distribution
systems, or any of them, and all other electric distribution systems of the
Company and parts thereof wherever situated, and whether now owned or hereafter
acquired, as well as all rights-of-way, easements, privileges, permits,
municipal or other franchises, consents and rights for or relating to the
construction, maintenance or operation thereof, or any part thereof, through,
over, under or upon public or private lands, whether now owned or hereafter
acquired; and
All electric transmission and/or distribution lines of the Company,
including the towers, poles, pole lines, wires, switch racks, insulators,
supports, guys, telephone and telegraph lines and other appliances and
equipment, and all other property of the Company, real, personal or mixed,
forming a part thereof or appertaining thereto, together with all of the
Company's rights-of-way, easements, permits, privileges, municipal or other
franchises, consents, licenses and rights, for or relating to the construction,
maintenance or operation thereof, through, over, under or upon any public
streets or highways or other lands, public or private; also all extension,
branches, taps, developments and improvements of or to any and all of the above
described transmission and/or distribution lines, telephone and telegraph lines
or any of them, as well as all rights-of-way, easements, permits, privileges,
rights and municipal or other franchises, licenses and consents,for or relating
to the construction, maintenance or operation of said lines or any of them, or
any part thereof, through, over, under or upon any public streets or highways
or any public or private lands, whether now owned or hereafter acquired;
Excepting, however, any property of the character of "Excepted Property"
within the meaning of the Supplemental Indenture to which this Schedule A is
attached.
SPECIFIC DESCRIPTION OF ADDITIONAL REAL PROPERTY
Specific descriptions of additional portions of the Mortgaged Property
which constitute real property are contained in Annex 1 to this Schedule A.
