Exhibit 99.2
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Supplemental Indenture No. 4
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TUCSON ELECTRIC POWER COMPANY
to
THE BANK OF NEW YORK,
Trustee
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Dated as of November 1, 2002
Supplemental to Indenture of Mortgage and Deed of Trust,
dated as of December 1, 1992
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Creating A Series of Bonds Designated
Second Mortgage Bonds, Collateral Series C
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This instrument constitutes a mortgage, a deed of trust and a
security agreement.
SUPPLEMENTAL INDENTURE NO. 4, dated as of November 1, 2002, 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 One South Church Avenue, in the City of
Tucson, Arizona, as trustor, and THE BANK OF NEW YORK (successor in trust to
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
000 Xxxxxxx 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 amended and
supplemented, this Supplemental Indenture No. 4 being supplemental thereto
(the Original Indenture as heretofore amended and 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 C" 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 $400,600,000, such series of Bonds
and such Bonds to be hereinafter sometimes called, respectively, "Series 4"
and "Series 4 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 4 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. 4
have been in all respects duly authorized; and
WHEREAS, effective June 3, 1999, The Bank of New York succeeded to all
of the corporate trust business of Bank of Montreal Trust Company, and, as a
consequence, The Bank of New York, being otherwise qualified and eligible
under Article XII of the Original Indenture, became the successor trustee
under the Indenture without further act on the part of the parties thereto,
as contemplated by Section 11 of Article XII of the Original Indenture.
GRANTING CLAUSES
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 4 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 4 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. 4 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 parties, 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. 4, 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 November 14,
2002, among the Company, the lenders parties thereto, the issuing banks
parties thereto 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, 2003.
"Maturity" means the date on which the principal of the Series 4 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", "Obligations" and "Tranche B Maturity Date".
A copy of the Credit Agreement is filed at the office of the
Administrative Agent at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 and at
the office of the Company at Xxx Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
ARTICLE II
SERIES 4 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 C" (such Bonds being hereinafter
sometimes called the "Series 4 Bonds");
(b) the aggregate principal amount of Series 4 Bonds which may be
authenticated and delivered under the Indenture shall be limited to
$400,600,000, except as contemplated in subdivision (b) of Section 2 of
Article II of the Original Indenture;
(c) not applicable;
(d) the Series 4 Bonds shall mature on November 14, 2008;
(e) during the period from and including the date of the first
authentication and delivery of the Series 4 Bonds to and including the
day next preceding the first Interest Payment Date, the Series 4 Bonds
shall bear interest at the rate of ten per centum (10%) per annum;
thereafter, the Series 4 Bonds shall bear interest at a rate equal to
the Alternate Base Rate from time to time in effect plus 800 basis
points; interest on the Series 4 Bonds shall accrue from and including
the date of the first authentication and delivery of the Series 4 Bonds,
except as otherwise provided in the form of bond attached hereto as
Exhibit A; interest on the Series 4 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 4 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 4 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 4 Bonds or
the Indenture may be served or made and (iii) Series 4 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 4 Bonds and
interest payable thereon at Maturity shall be payable upon presentation
thereof; interest payable on the Series 4 Bonds prior to Maturity shall
be paid by the Company directly to the Holders thereof.
(g) the Series 4 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 4 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 Tranche B Maturity
Date, then all Series 4 Bonds shall be redeemed immediately at the
principal amount thereof plus accrued interest to the date of
redemption;
(i) the Series 4 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 4 Bonds;
(o) (i) the Series 4 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 4 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 4 Bonds).
(iii) the obligation of the Company to pay the principal
of and accrued interest on the Series 4 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 4 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 4 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 4 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 4 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 4 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 4 Bonds.
ARTICLE III
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. 4 is a supplement to the Original
Indenture. As heretofore supplemented and further supplemented by this
Supplemental Indenture No. 4, the Original Indenture is in all respects
ratified, approved and confirmed, and the Original Indenture as heretofore
supplemented and this Supplemental Indenture No. 4 shall together constitute
one and the same instrument.
The Trustee makes no representation as to the validity or sufficiency of
this Supplemental Indenture No. 4. The statements herein are deemed to be
those of the Company and not of the Trustee.
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 The
Bank of New York, as trustee, 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 /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Vice President
Attest:
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Assistant Secretary
THE BANK OF NEW YORK,
Trustee
By /s/ Van X. Xxxxx
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Van X. Xxxxx
Vice President
Attest:
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Vice President
STATE OF ARIZONA )
) ss.:
COUNTY OF PIMA )
This instrument was acknowledged before me this 8th day of November 2002
by Xxxxx X. Xxxxxx, as Vice President, and Xxxxx Xxxxxxx, 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.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
This instrument was acknowledged before me this 7th day of November 2002
by Van X. Xxxxx, as Vice President, and Xxxxxx X. Xxxxxxxxxx, as Vice
President, of THE BANK OF NEW YORK, 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.
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
NOTARY Public
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 C
DUE NOVEMBER 14, 2008
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 November 14, 2008 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, 2003 (each an "Interest Payment Date"), and at Maturity
(as defined in Supplemental Indenture No. 4 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. 4 hereinafter referred
to) from time to time in effect plus 800 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 The Bank of New York, (successor in trust to Bank of Montreal
Trust Company), trustee (the "Trustee"), as supplemented by four
supplemental indentures including Supplemental Indenture No. 4,
dated as November 1, 2002 (the Original Indenture, as so
supplemented, and such Supplemental Indenture being hereinafter
called the "Indenture" and "Supplemental Indenture No. 4",
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 C, 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 November 14, 2002, among the Company, the lenders parties
thereto, the issuing banks parties thereto, 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. 4).
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. 4, or (ii) the Tranche B 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. 4) 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 The Bank of New York, 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 or facsimile signature of its Secretary or
one of its Assistant Secretaries.
Dated:
TUCSON ELECTRIC POWER COMPANY
By:
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Attest:
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the bonds, of the series designated therein,
described in the within-mentioned Indenture.
The Bank of New York,
Trustee
By:
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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 lands on 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.
Annex 1
to
Schedule A
BEGINNING at an aluminum cap marking the Northeast corner of
Section 3, Township 12 North, Range 29 East of the Gila and Salt
River Base and Meridian, Apache County, Arizona;
thence South 1 degree 22'08" East along the East boundary of
Section 3, a distance of 982.81 feet to a point in an existing
fence line;
thence North 33 degrees 32'47" West along an existing fence line a
distance of 1,175.17 feet to a point on the North boundary of
Section 3;
thence North 89 degrees 42'59" East along the North boundary of
Section 3, a distance of 625.94 feet to the TRUE POINT OF
BEGINNING.
EXCEPT all minerals, oil, gas or other hydrocarbon substances in,
on or under said land as reserved in Deed recorded in Book 6 of
Official Records, pages 227-228.
