This Instrument Grants a Security Interest By a Utility
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TEXAS-NEW MEXICO POWER COMPANY
to
Chase Bank of Texas, N.A.,
as Trustee
-------------------------
First Supplemental Indenture
Dated as of January 1, 1999
Supplemental to the Indenture
dated as of January 1, 1999
Establishing a series of Securities
designated 6 1/4% Senior Notes Due 2009
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FIRST SUPPLEMENTAL INDENTURE, dated as of January 1, 1999 (herein
called the "First Supplemental Indenture"), between Texas-New Mexico Power
Company, a corporation duly organized and existing under the laws of the State
of Texas (hereinafter called the "Company") and Chase Bank of Texas, N.A., as
Trustee under the Original Indenture referred to below (hereinafter called the
"Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of January 1, 1999 (hereinafter called the
"Original Indenture"), to provide for the issuance from time to time in one or
more series of its debentures, notes, bonds or other evidences of indebtedness
(herein called the "Securities"), the form and terms of which are to be
established as set forth in Sections 2.1 and 3.1 of the Original Indenture;
WHEREAS, Section 9.1 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among purposes, (1) securing the Securities in
accordance with Section 3.1 and (2) establishing the form and terms of the
Securities of any series as permitted in Sections 2.1 and 3.1 of the Original
Indenture;
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $175,000,000 to be designated the "6 1/4% Senior
Notes Due 2009" (the "Senior Notes"), and all action on the part of the Company
necessary to authorize the issuance of the Senior Notes under the Original
Indenture and this First Supplemental Indenture has been duly taken;
WHEREAS, subject to the provisions hereof, the Company may issue one or
more series of Senior Note Mortgage Bonds (as hereinafter defined) and deliver
such series to the Trustee to hold in trust for the benefit of the respective
Holders from time to time of the Related Series of Securities (as defined
herein) and any payment by the Company of principal of, premium, if any, and
interest on, the Senior Notes will be applied by the Trustee to satisfy the
Company's obligations with respect to the principal of, premium, if any, and
interest on, the Related Series of Senior Note Mortgage Bonds; and, pursuant to
the terms and provisions hereof, the Company may require the Trustee to deliver
to the Company for cancellation any and all of the Related Series of Senior Note
Mortgage Bonds held by the Trustee; and
WHEREAS, all acts and things necessary to make the Senior Notes, when
executed by the Company and completed, authenticated and delivered by the
Trustee as provided in the Original Indenture and this First Supplemental
Indenture, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and of the acceptance and
purchase of the Senior Notes by the holders thereof and of the acceptance of
this trust by the Trustee, the Company covenants and agrees with the Trustee,
for the equal benefit of holders of the Senior Notes, as follows:
ARTICLE ONE
Definitions
The use of the terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Original Indenture, as
amended and supplemented hereby, and the form of Senior Notes attached hereto as
Exhibit A.
ARTICLE TWO
Terms and Issuance of the 6 1/4% Senior Notes Due 2009
Section 2.1. Issue of Senior Notes. A series of Securities which shall
be designated the "6 1/4% Senior Notes Due 2009" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of, the Original
Indenture, as amended, and this First Supplemental Indenture (including the form
of Senior Note set forth in Exhibit A). The aggregate principal amount of the
Senior Notes which may be authenticated and delivered under this First
Supplemental Indenture shall not, except as permitted by the provisions of the
Original Indenture, exceed $175,000,000.
Section 2.2. Form of Senior Notes; Incorporation of Terms. The form of
the Senior Notes shall be substantially in the form of Exhibit A attached
hereto. The terms of such Senior Notes are herein incorporated by reference and
are part of this First Supplemental Indenture.
Section 2.3. Depositary for Global Securities. The Depositary for any
Global Securities of the series of which this Security is a part shall be The
Depository Trust Company in the City of New York.
Section 2.4. Place of Payment. The Place of Payment in respect of the
Senior Notes will be at the principal office or agency of the Company in the
City of New York, State of New York or at the office or place of business of the
Trustee or its successor in trust under the Original Indenture, which, at the
date hereof, is located at 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000.
Section 2.5. Related Series of Senior Note Mortgage Bonds. The Related
Series of Senior Note Mortgage Bonds for the Senior Notes shall be the Company's
Senior Note Mortgage Bonds, Series X, 6 1/4% due 2009.
Section 2.6. Restrictions on Liens. The covenant provided by Section
10.10 of the Original Indenture shall be applicable to the Senior Notes from and
after the Release Date, provided, that no Event of Default has occurred and at
such time is continuing under the Original Indenture.
Section 2.7. Restrictions on Sale and Leaseback Transactions. The
covenant provided by Section 10.11 of the Original Indenture shall be applicable
to the Senior Notes after the Release Date.
ARTICLE THREE
Amendments to Original Indenture
Section 3.1. Section 1.1 of the Original Indenture is hereby amended by
adding the following definitions:
"Expert" means any officer of the Company familiar with the
terms of the First Mortgage Indenture and this Indenture, any law firm,
any investment banking firm, or any other Person reasonably acceptable
to the Trustee.
"First Mortgage Bonds" means all first mortgage bonds issued
by the Company and outstanding under the First Mortgage Indenture,
other than Senior Note Mortgage Bonds.
"First Mortgage Indenture" means the Indenture of Mortgage and
Deed of Trust, dated November 1, 1944, by and between Community Public
Service Co. (now known as the Company) and City National Bank and Trust
Company of Chicago, Chicago, Illinois (whose current successor is U.S.
Bank Trust, N.A.) (as of the date hereof, the "First Mortgage
Trustee"), as supplemented and modified from time to
time
"First Mortgage Trustee" means the Person serving as trustee
at the time under the First Mortgage Indenture.
"Related Series of Securities", when used in reference to any
series of Senior Note Mortgage Bonds, means the series of Securities
which, in connection with its original authentication and issuance
pursuant to Section 3.3 hereof, such series of Senior Note Mortgage
Bonds were delivered to the Trustee pursuant to Section 14.1 hereof.
"Related Series of Senior Note Mortgage Bonds", when used in
reference to any series of Securities, shall mean the series of Senior
Note Mortgage Bonds delivered to the Trustee pursuant to Section 14.1
hereof in connection with the initial authentication and issuance of
Securities pursuant to Section 3.3 hereof.
"Release Date" means a date chosen by the Company which shall
be not earlier than the later of (i) the date as of which all First
Mortgage Bonds, other than the Senior Note Mortgage Bonds, have been
retired through payment, redemption, or otherwise (including those
First Mortgage Bonds "deemed to be paid" or as to which the entire
indebtedness is paid and discharged within the meaning used in Article
18 of the First Mortgage Indenture) at, before or after the maturity
thereof, and (ii) the date as of which no Liens on any Property of the
Company or any Subsidiary exists (whether such Liens secure
Indebtedness of the Company or any Subsidiary or any other Person),
except that this clause (ii) shall not apply to any Lien to the extent
described in clauses (a) through (k) of Section 10.10 of the Original
Indenture or in the last paragraph of such Section 10.10.
"Senior Note Mortgage Bonds" shall mean any bonds issued by
the Company under the First Mortgage Indenture and delivered to the
Trustee pursuant to Section 14.1 hereof.
Section 3.2. Prior to the Release Date, Section 1.5(a) of the Original
Indenture is hereby amended by inserting the words ", the First Mortgage
Trustee" following the words "by any Holder".
Section 3.3. Prior to the Release Date, Section 3.1 of the Original
Indenture is hereby amended in the following manner:
1. Section 3.1(l) is amended by deleting the ";" after the
word "Securities" and adding "and any change in the right of
the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant
to Section 5.2;"
2. Section 3.1(p) is amended by deleting the word "and" at the
end of the Section;
3. The following Section 3.1(q) is added, to follow Section
3.1(p):
"(q) if prior to the Release Date, the designation of the
series of Senior Note Mortgage Bonds being delivered to the Trustee in
connection with such series of Securities, if any; and"
4. Former Section 3.1(q) is relettered as Section 3.1(r).
Section 3.4. Prior to the Release Date, the third paragraph of Section
3.3 of the Original Indenture is hereby amended by (a) adding "(i)" before the
words "a Company Order" on the third line of the paragraph, and (b) by adding,
after the words "so offered;" on the eighth line of such paragraph, the
following words:
"(ii) an Officers' Certificate stating that (x) the Company is not, and
upon the authentication by the Trustee of the series of Securities,
will not be in default under any of the terms or covenants contained in
the Indenture, (y) all conditions that must be met by the Company to
issue Securities under the Indenture have been met, and (z) if prior to
the Release Date, the series of Senior Note Mortgage Bonds being
delivered to the Trustee meets the requirements of Section 14.9 hereof,
and (iii) if prior to the Release Date, a series of Senior Note
Mortgage Bonds meeting the requirements of Section 14.9 hereof;"
Section 3.5. Prior to the Release Date, the fourth paragraph of Section
3.3 of the Original Indenture is hereby amended in the following manner:
1. Clause (b) of the fourth paragraph is amended by deleting
the word "and" at the end of the clause.
2. Clauses (d) and (e) are added after clause (c), as follows:
"(d) if prior to the Release Date, that the Senior
Note Mortgage Bonds to be delivered to the Trustee in
connection with the issuance of such series of Securities have
been duly authorized, and that such Senior Note Mortgage
Bonds, when authenticated and delivered by the First Mortgage
Trustee and issued by the Company in accordance with the terms
of the First Mortgage Indenture, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or other similar laws relating to or
affecting the rights of creditors generally and except as the
enforceability thereof is subject to the application of
general principles of equity (regardless of whether considered
in a proceeding in equity or at law), including, without
limitation, (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy
and (ii) concepts of materiality, reasonableness, good faith
and fair dealing, and except as enforcement of remedial and
procedural provisions thereof may be limited by state laws
affecting the remedies for the enforcement of the security
provided for in the First Mortgage Indenture; and that such
Senior Note Mortgage Bonds will be entitled to the benefit of
the First Mortgage Indenture, equally and ratably, with all
other First Mortgage Bonds outstanding thereunder, except as
to any sinking fund provisions; and
(e) if prior to the Release Date, that the First
Mortgage Indenture and any required financing statements have
been duly filed and recorded in all places where such filing
or recording is necessary for the perfection or preservation
of the lien of the First Mortgage Indenture, and the First
Mortgage Indenture constitutes a valid and perfected first
lien upon the property purported to be covered thereby,
subject only to Permitted Encumbrances (as defined in the
First Mortgage Indenture);"
3. The proviso following clause (e) is amended (1) by adding
after the words "Opinion of Counsel" the words ", the
Officers' Certificate, the certificate of an Expert and the
Senior Note Mortgage Bonds"; and (2) by replacing "clauses (b)
and (c)" with "clauses (b), (c), (d) and (e)".
4. The word "and" at the end of subclause (i) is deleted, and
the following subclauses (iii) and (iv) are inserted after
subclause (ii):
"(iii) if prior to the Release Date, when
the terms of the Senior Note Mortgage Bonds have been
established in accordance with the instrument or
instruments creating the series of which such Senior
Note Mortgage Bonds are a part, that the Senior Note
Mortgage Bonds to be delivered to the Trustee in
connection with the issuance of such series of
Securities will have been duly authorized, and that
such Senior Note Mortgage Bonds, when authenticated
and delivered by the First Mortgage Trustee and
issued by the Company in accordance with the terms of
the First Mortgage Indenture, will constitute valid
and legally binding obligations of the Company,
enforceable in accordance with their terms, except as
may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or
transfer or other similar laws relating to or
affecting the rights of creditors generally and
except as the enforceability thereof is subject to
the application of general principles of equity
(regardless of whether considered in a proceeding in
equity or at law), including, without limitation, (i)
the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and
(ii) concepts of materiality, reasonableness, good
faith and fair dealing, and except as enforcement of
remedial and procedural provisions thereof may be
limited by state laws affecting the remedies for the
enforcement of the security provided for in the First
Mortgage Indenture; and that such Senior Note
Mortgage Bonds will be entitled to the benefit of the
First Mortgage Indenture, equally and ratably, with
all other First Mortgage Bonds outstanding
thereunder, except as to any sinking fund provisions;
and
(iv) if prior to the Release Date, that when
the First Mortgage Indenture and any required
financing statements have been duly filed and
recorded in all places where such filing or recording
is necessary for the perfection or preservation of
the lien of the First Mortgage Indenture, the First
Mortgage Indenture will constitute a valid and
perfected first lien upon the property purported to
be covered thereby, subject only to Permitted
Encumbrances (as defined in the First Mortgage
Indenture);"
Section 3.6. Prior to the Release Date, Article 3 of the Original
Indenture is hereby amended by adding, after Section 3.12, the following Section
3.13:
"Section 3.13. Payment of Securities. The Trustee shall
receive the Senior Note Mortgage Bonds from the Company as provided in
this Indenture and shall hold the Senior Note Mortgage Bonds, and any
and all sums payable thereon or with respect thereto or realized
therefrom, in trust for the benefit of the Holders of the Securities,
as herein provided. Subject to Article Five hereof, all payments made
by the Company to the Trustee on a series of Senior Note Mortgage
Bonds, if any, shall be applied by the Trustee to pay, when due,
principal of, premium, if any, and interest on the Related Series of
Securities and, to the extent so applied, shall satisfy the Company's
obligations on such Securities. Notwithstanding the foregoing, the
Company's obligation to make payments of principal of, premium, if any,
and interest on any series of Senior Note Mortgage Bonds shall be fully
satisfied by making timely payments of principal of, premium, if any,
and interest on the Related Series of Securities."
Section 3.7. Prior to the Release Date, Article 4 of the Original
Indenture is hereby amended by adding, after Section 4.2, the following Section
4.3:
"Section 4.3. Release of Related Series of Senior Note Mortgage Bonds.
(a) If the obligations of the Company to make payment with
respect to any series of Securities are satisfied and discharged, in
whole or in part, pursuant to this Article 4, the Related Series of
Senior Note Mortgage Bonds shall be deemed to be paid and discharged in
a principal amount equal to the principal amount of the Related Series
of Securities paid and discharged pursuant hereto.
(b) If the Company shall have paid or caused to be paid the
principal of and premium, if any, and interest on any Security (or
portion thereof), as and when the same shall have become due and
payable or the Company shall have delivered to the Trustee for
cancellation any Outstanding Security (or portion thereof), such
Security (or portion thereof) shall cease to be entitled to any lien,
benefit or security under this Indenture. Upon a Security of any series
(or portion thereof) ceasing to be entitled to any lien, benefit or
security under this Indenture, the obligation of the Company to make
payment with respect to principal of and premium, if any, and interest
on a principal amount of the Related Series of Senior Note Mortgage
Bonds equal to the principal amount of such Security (or portion
thereof) shall be satisfied and discharged and such Senior Note
Mortgage Bonds (or portion thereof) shall cease to secure the
Securities in any manner, and the Trustee shall release and deliver to
the Company such Senior Note Mortgage Bonds (or portion thereof).
(c) Upon the satisfaction and discharge of this Indenture, the
Trustee shall at the request of the Company return to the Company all
Senior Note Mortgage Bonds and all other property and money held by it
under this Indenture and determined by it to be in excess of the amount
required to be held under Section 4.1 hereof."
Section 3.8. Prior to the Release Date, Sections 5.1 of the Original
Indenture is hereby amended by replacing the "." at the end of clause (h) with
"; or" and by adding, after such clause (h), the following clauses (i) and (j):
"(i) a "default" as defined in the First Mortgage
Indenture has occurred and is continuing, and the First
Mortgage Trustee, the Company or Holders of at least 33% in
aggregate principal amount of the Securities at the time
outstanding shall have given written notice thereof to the
Trustee; or
(j) any Event of Default under any series of
Securities issued pursuant to this Indenture or any event of
default, as defined in any other indenture, mortgage or
instrument under which there may be issued, or by which there
may be secured or evidenced, any Indebtedness of the Company
(whether such Indebtedness now exists or shall hereafter be
created or incurred) shall occur and shall consist of default
in the payment of such Indebtedness at the maturity thereof
(after giving effect to any applicable grace period) or shall
result in Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become
due and payable, and such default in payment is not cured or
such acceleration shall not be rescinded or annulled within 10
days after written notice to the Company from the Trustee or
to the Company and to the Trustee from the Holders of at least
10% in aggregate principal amount of the Securities of that
series at the time Outstanding; provided that if, prior to the
declaration of acceleration of the maturity of the Securities
of that series or the entry of judgment in favor of the
Trustee in a suit pursuant to Section 5.3, such default shall
be remedied or cured by the Company or waived by the holders
of such Indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action on the part
of either the Trustee or any of the Holders of the Securities
of that series, and provided further, that, subject to Section
6.1 and 6.2, the Trustee shall not be charged with knowledge
of any such default unless written notice of such default
shall have been given to the Trustee by the Company, by a
holder or an agent of a holder of any such Indebtedness, by
the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by
the Holders of at least five percent in aggregate principal
amount of the Securities of that series at the time
Outstanding."
Section 3.9. Prior to the Release Date, Section 5.2 of the Original
Indenture is hereby amended as follows:
1. A new paragraph is added, to follow the first paragraph of Section
5.2, as follows:
"Upon the Securities being declared to be or becoming due and
payable, the Trustee can immediately file with the First Mortgage
Trustee a written demand for redemption of all Senior Note Mortgage
Bonds pursuant to the applicable provisions of the supplemental
indenture to the First Mortgage Indenture."
2. The paragraph following the new second paragraph of Section 5.2 is
amended (i) by adding after the word "provided," the words "and prior
to the mailing to the Trustee by the First Mortgage Trustee of a firm,
valid and unconditional notice to the Trustee of the acceleration of
all of the First Mortgage Bonds issued and outstanding under the First
Mortgage Indenture," and (ii) by adding after the word "consequences"
the words "(including if given the written demand for redemption of all
Senior Note Mortgage Bonds)".
3. Clause (b) of Section 5.2 is amended by deleting the "." at the end
of such clause (b) and replacing it with "(including any defaults under
the First Mortgage Indenture, as evidenced by notice thereof from the
First Mortgage Trustee to the Trustee).".
Section 3.10. Prior to the Release Date, Section 5.3 of the Original
Indenture is hereby amended in the following manner:
1. By adding after the word "unpaid" in the second paragraph of Section
5.3 the following words: "(including, prior to the Release Date, to
exercise any rights to that end it may have as holder of the Senior
Note Mortgage Bonds)".
2. By adding after the first occurrence of the word "rights" in the
third paragraph of Section 5.3 the following words: "(including, prior
to the Release Date, its rights as holder of the Senior Note Mortgage
Bonds)".
Section 3.11. Prior to the Release Date, subclause (a) of the first
paragraph of Section 5.4 of the Original Indenture is hereby amended by adding,
after the word "(including" the words ", prior to the Release Date, any claims
of the Trustee as holder of Senior Note Mortgage Bonds and including".
Section 3.12. Prior to the Release Date, Section 5.5 of the Original
Indenture is hereby amended by adding, after the words "Securities of any
series" on the second line of such Section 5.5, the words "(including, prior to
the Release Date, its rights as holder of the Senior Note Mortgage Bonds),".
Section 3.13. Prior to the Release Date, Section 7.3 of the Original
Indenture is hereby amended as follows:
1. The word "and" at the end of Section 7.3(a)(6) is deleted.
2. The "." at the end of Section 7.3(a)(7) is replaced with "; and".
3. The following Section 7.3(a)(8) is added after Section 7.3(a)(7):
"(8) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration therefor, if any) which it has not previously
reported."
Section 3.14. Prior to the Release Date, Section 8.1(a) of the Original
Indenture is hereby amended in the following manner:
1. In Section 8.1(a), the letter "(i)" is added after the word
"assume,".
2. The ";" at the end of Section 8.1(a) is replaced by "," followed by
the words: "and (ii) if such consolidation, merger, conveyance, sale or
other transfer occurs prior to the Release Date, by an indenture
supplemental to the First Mortgage Indenture, executed and delivered to
the Trustee and the First Mortgage Trustee, in form satisfactory to the
Trustee and the First Mortgage Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all of the
Senior Note Mortgage Bonds and the performance of every covenant of the
First Mortgage Indenture on the part of the Company to be performed or
observed;".
Section 3.15. Section 9.1(j) of Article 9 of the Original Indenture is
hereby amended by deleting the "." after the words "fully registered form" and
inserting in its place the word "; and" and by adding the following new
paragraph (k) after paragraph (j):
"(k) after the Release Date, to amend this Indenture to
eliminate any provisions related to the Senior Note Mortgage Bonds
which are no longer applicable."
Section 3.16. Prior to the Release Date, Section 9.2(l) of the Original
Indenture is hereby amended by replacing the ";" at the end of such Section
9.2(l) with "," followed by the words: "or impair the interest hereunder of the
Trustee in the Senior Note Mortgage Bonds, or prior to the Release Date, reduce
the principal amount of any series of Senior Note Mortgage Bonds to an amount
less than the principal amount of the Related Series of Securities or alter the
payment provisions of such Senior Note Mortgage Bonds in a manner adverse to the
Holders of the Securities;".
Section 3.17. Prior to the Release Date, Article 10 of the Original
Indenture is hereby amended by adding, after Section 10.13, the following
Section 10.14:
"Section 10.14. Opinions of Counsel. The Company shall deliver
to the Trustee:
(a) promptly after the execution and delivery of this
Indenture and of any indenture supplemental to this Indenture but
prior to the Release Date, an Opinion of Counsel either stating that,
in the opinion of such counsel, this Indenture or such supplemental
indenture and any financing or continuation statements have been
properly recorded and filed so as to make effective and to perfect the
security interest of the Trustee intended to be created by this
Indenture for the benefit of the Holders from time to time of the
Securities in the Senior Note Mortgage Bonds, and reciting the details
of such action, or stating that, in the opinion of such counsel, no
such action is necessary to perfect or make such security interest
effective and stating what, if any, action of the foregoing character
may reasonably be expected to become necessary prior to the next
succeeding March 1 to maintain, perfect and make such security
interest effective; and
(b) on or before March 1 of each year, beginning in 1999, and
prior to the Release Date, an Opinion of Counsel either stating that
in the opinion of such counsel such action has been taken, since the
date of the most recent Opinion of Counsel furnished pursuant to this
Section 10.14(b) or the first Opinion of Counsel furnished pursuant to
Section 10.14(a) hereof, with respect to the recording, filing,
rerecording, or refiling of this Indenture, each supplemental
indenture and any financing or continuation statements, as is
necessary to maintain and perfect the security interest of the Trustee
intended to be created by this Indenture for the benefit of the
Holders from time to time of the Securities in the Senior Note
Mortgage Bonds, and reciting the details of such action, or stating
that in the opinion of such counsel no such action is necessary to
maintain and perfect such security interest and stating what, if any,
action of the foregoing character may reasonably be expected to become
necessary prior to the next succeeding March 1 to maintain, perfect
and make such security interest effective."
Section 3.18. Prior to the Release Date, Section 13.2 of the Original
Indenture is hereby amended by replacing the "." after the word "Defeasance")"
in the first sentence of such Section with the following words: "and the
obligation of the Company to make payment with respect to the principal of and
premium, if any, and interest on the Related Series of Senior Note Mortgage
Bonds shall be satisfied and discharged, as provided in the supplemental
indenture or indentures to the First Mortgage Indenture creating such Senior
Note Mortgage Bonds and the Senior Note Mortgage Bonds shall cease to secure the
related Securities in any manner.".
Section 3.19. The Original Indenture is hereby amended by adding, after
Section 13.6, the following Article 14:
"ARTICLE 14
Senior Note Mortgage Bonds
Section 14.1. Delivery of Senior Note Mortgage Bonds to the Trustee.
Subject to the provisions of Section 4.1 and Section 14.10
hereof, the Company (a) shall, from time to time prior to the Release
Date, deliver to the Trustee, upon the issuance of a series of
Securities hereunder, Senior Note Mortgage Bonds conforming to the
requirements of Section 14.9 hereof, fully registered in the name of
the Trustee, in trust for the benefit of the Holders from time to time
of the Securities issued under this Indenture as security for any and
all obligations of the Company under the Securities, including, but not
limited to, (1) the full and prompt payment of the principal of the
Securities when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the
Securities, either at the stated maturity thereof, upon acceleration of
the maturity thereof or upon redemption, and (2) the full and prompt
payment of any interest on the Securities when and as the same shall
become due and payable in accordance with the terms and provisions of
this Indenture or the Securities and (b) shall deliver concurrently
therewith to the Trustee the certificate of the Expert required by
Section 14.6 hereof.
Section 14.2. Receipt.
The Trustee shall accept and acknowledge receipt of the Senior
Note Mortgage Bonds and Expert certificate described in Section 14.1
hereof upon the delivery thereof in accordance with said Section 14.1.
Section 14.3. Senior Note Mortgage Bonds Held by the Trustee.
The Trustee, as holder of the Senior Note Mortgage Bonds,
shall attend any meeting of bondholders under the First Mortgage
Indenture as to which it receives due notice, or, at its option, shall
deliver its proxy in connection therewith. Either at such meeting, or
otherwise where consent of holders of First Mortgage Bonds issued under
the First Mortgage Indenture is sought without a meeting, the Trustee
shall vote all of the Senior Note Mortgage Bonds held by it, or shall
consent or withhold its consent with respect thereto, as directed by
the Holders of not less than a majority in the aggregate principal
amount of the outstanding Securities; provided, however, the Trustee
shall not vote as such holder of any particular series of Senior Note
Mortgage Bonds in favor of, or give its consent to, any action which,
in the Trustee's opinion, would materially adversely affect such series
of Senior Note Mortgage Bonds in a manner not shared generally by all
other Senior Note Mortgage Bonds, except upon notification by the
Trustee to the Holders of the Related Series of Securities of such
proposal and consent thereto of the Holders of not less than a majority
in aggregate principal amount of the outstanding Securities of such
series.
Section 14.4. No Transfer of Senior Note Mortgage Bonds;
Exception.
Except as required to effect an assignment to a successor
trustee under this Indenture or pursuant to Section 14.5 or Section
14.8 hereof, the Trustee shall not sell, assign or transfer the Senior
Note Mortgage Bonds and the Company shall issue stop transfer
instructions to the First Mortgage Trustee and any transfer agent under
the First Mortgage Indenture to effect compliance with this Section
14.4.
Section 14.5. Delivery to the Company of All Senior Note
Mortgage Bonds.
When the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the
Senior Note Mortgage Bonds shall be satisfied or deemed satisfied
pursuant to Section 4.1 or Section 14.10 hereof, the Trustee shall,
upon written request of the Company and receipt of the certificate of
the Expert described in Section 14.6(b) hereof (if such certificate is
then required by Section 14.6(b) hereof), deliver to the Company
without charge therefor all of the Senior Note Mortgage Bonds, together
with such appropriate instruments of transfer or release as may be
reasonably requested by the Company. All Senior Note Mortgage Bonds
delivered to the Company in accordance with this Section 14.5 shall be
delivered by the Company to the First Mortgage Trustee for
cancellation.
Section 14.6. Reserved.
Section 14.7. Further Assurances.
The Company shall cause this Indenture, any indentures
supplemental to this Indenture, and any financing or continuation
statements to be promptly recorded and filed and rerecorded and refiled
in such a manner and in such places, as may be required by law in order
fully to preserve, protect and perfect the security of the Holders and
all rights of the Trustee, and, at its own expense, shall do such
further lawful acts and things, and execute and deliver such additional
conveyances, assignments, assurances, agreements, financing statements
and instruments, as may be necessary in order to better assign, assure,
perfect and confirm to the Trustee its security interest in the Senior
Note Mortgage Bonds and for maintaining, protecting and preserving such
security interest.
Section 14.8. Exchange and Surrender of Senior Note Mortgage
Bonds.
At any time at the written direction of the Company, the
Trustee shall surrender to the Company all or part of the Senior Note
Mortgage Bonds in exchange for Senior Note Mortgage Bonds equal in
aggregate outstanding principal amounts to, in different denominations
than but of the same series and with all other terms identical to, the
Senior Note Mortgage Bonds so surrendered to the Company. In addition,
at any time a Security shall cease to be entitled to any lien, benefit
or security under this Indenture pursuant to Section 4.4 hereof, the
Trustee shall surrender Senior Note Mortgage Bonds as provided in this
Section to the Company for cancellation. The Trustee shall, together
with such Senior Note Mortgage Bonds, deliver to the Company such
appropriate instruments of transfer or release as the Company may
reasonably request. Prior to the surrender required by this paragraph,
the Trustee shall receive from the Company the following, and (subject
to Section 6.1 hereof) shall be fully protected in relying upon, (a) an
Officers' Certificate stating (i) the aggregate outstanding principal
amount of the Senior Note Mortgage Bonds of the series surrendered by
the Trustee, after giving effect to such surrender, (ii) the aggregate
outstanding principal amount of the Related Series of Securities, (iii)
that the surrender of the Senior Note Mortgage Bonds will not result in
any default under this Indenture, and (iv) that any Senior Note
Mortgage Bonds to be received in exchange for the Senior Note Mortgage
Bonds being surrendered comply with the provisions of this Section
14.8.
The Company shall not be permitted to cause the surrender or
exchange of all or any part of a series of Senior Note Mortgage Bonds
contemplated in this Section 14.8, if, after such surrender or
exchange, the aggregate outstanding principal amount of the Related
Series of Securities would exceed the aggregate outstanding principal
amount of such series of Senior Note Mortgage Bonds held by the
Trustee. Any Senior Note Mortgage Bonds received by the Company
pursuant to this Section 14.8 shall be delivered to the First Mortgage
Trustee for cancellation.
Section 14.9. Terms of Senior Note Mortgage Bonds.
Each series of Senior Note Mortgage Bonds delivered to the
Trustee pursuant to Section 14.1 hereof shall have the same stated rate
or rates of interest (or interest calculated in the same manner),
Interest Payment Dates, Stated Maturity, and redemption provisions, and
shall be in the same aggregate principal amount, as the Related Series
of Securities being contemporaneously issued.
Section 14.10. Senior Note Mortgage Bonds as Security for
Securities.
Until the Release Date and subject to Article Four hereof,
Senior Note Mortgage Bonds delivered to the Trustee, for the benefit of
the Holders of the Securities, shall serve as security for any and all
obligations of the Company under the Securities, including, but not
limited to (1) the full and prompt payment of the principal of such
Securities when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or the
Securities, either at the Stated Maturity thereof, upon acceleration of
the maturity thereof or upon redemption, and (2) the full and prompt
payment of any interest on such Securities when and as the same shall
become due and payable in accordance with the terms and provisions of
this Indenture or the Securities.
Notwithstanding anything in this Indenture to the contrary,
from and after the Release Date, the obligation of the Company to make
payment with respect to the principal of and premium, if any, and
interest on the Senior Note Mortgage Bonds shall be deemed satisfied
and discharged as provided in the supplemental indenture or indentures
to the First Mortgage Indenture creating such Senior Note Mortgage
Bonds and the Senior Note Mortgage Bonds shall cease to secure in any
manner Securities theretofore or subsequently issued. From and after
the Release Date, all Securities, whether theretofore or subsequently
issued, shall be unsecured, and any conditions to the issuance of
Securities that refer or relate to Senior Note Mortgage Bonds or the
First Mortgage Indenture shall be inapplicable. From and after the
Release Date, the Company shall cause the First Mortgage Indenture to
be closed and the Company shall not issue any additional First Mortgage
Bonds or Senior Note Mortgage Bonds under the First Mortgage Indenture.
Notice of the occurrence of the Release Date shall be given by the
Trustee to the Holders of the Securities in the manner provided in
Section 1.6 hereof not later than 30 days after the Company notifies
the Trustee of the occurrence of the Release Date."
ARTICLE FOUR
Miscellaneous
Section 4.1. Execution as Supplemental Indenture. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof.
Section 4.2. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof, or with a
provision of the Original Indenture, which is required to be included in this
First Supplemental Indenture, or in the Original Indenture, respectively, by any
of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 4.3. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 4.4. Effect of Amendments Effective Prior to the Release Date.
Whenever this Supplemental amends the Original Indenture during the period prior
to the Release Date, the Original Indenture shall revert back to its original
form after the Release Date.
Section 4.5. Successors and Assigns. All covenants and agreements by
the Company in this First Supplemental Indenture shall bind its successors and
assigns, whether so expressed or not.
Section 4.6. Separability Clause. In case any provision in this First
Supplemental Indenture or in the Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 4.7. Benefits of First Supplemental Indenture. Nothing in this
First Supplemental Indenture or in the Senior Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this First Supplemental Indenture.
Section 4.8. Execution and Counterparts. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
[CORPORATE SEAL]
TEXAS-NEW MEXICO POWER COMPANY
By /s/ X.X. Xxxxxx
Name: X. X. Xxxxxx
Title: Senior Vice President
Attest:
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Secretary
[SEAL] CHASE BANK OF TEXAS, N.A.,
As Trustee
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
Attest:
By /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXX XX XXX XXXX)
XXXXXX XX XXX XXXX)
Xx this 11th day of January, 1999, before me personally came
X.X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Senior Vice President of Texas-New Mexico Power Company, the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Xxxxxx Xxxxxxxx
XXXXX XX XXXXX)
XXXXXX XX XXXXXX)
Xx this 8th day of January, 1999 before me personally came
Xxxx X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of Chase Bank of Texas, N.A., a national association
described in and which executed the foregoing instrument; that he knows the seal
of said association; that the seal affixed to said instrument is such
association seal; that it was so affixed by authority of the Board of Directors
of said association, and that he signed his name thereto by like authority.
/s/ Xxxxxxxx X. Blue
[Notarial Seal]
EXHIBIT A
[If the Security is to be a Global Security, insert -- Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the issuer 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 since the registered owner hereof, Cede & Co., has an interest
herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TEXAS-NEW MEXICO POWER COMPANY
6 1/4% SENIOR NOTES DUE 2009
$-----------------
No. -------- CUSIP -----------------
TEXAS-NEW MEXICO POWER COMPANY, a corporation duly organized
and existing under the laws of the State of Texas (herein called the "Company,"
which term includes any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to -------------------- or registered
assigns, the principal sum of $---------------- on -------------, and to pay
interest thereon from --------, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ------------
and ----------- in each year, commencing --------, at the rate per annum
provided in the title hereof, until the principal hereof is paid or made
available for payment [if applicable, insert -- , and, subject to the terms of
the Indenture, at the rate of 6 1/4% per annum (assuming a 360-day year
consisting of twelve 30-day months) on any overdue principal and premium and (to
the extent that the payment of such interest shall be legally enforceable) on
any overdue installment of interest, from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security is registered at the close of business on the
Regular Record Date for such interest, which shall be the ------- or --------
(whether or not a Business Day), as the case may be, next preceding such
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 Security 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 Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities 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 Security will be made at the office or agency of the Company maintained
for that purpose in --------, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts; [if this Security is not a Global Security, insert -- 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 Security Register].
Reference is hereby made to the further provisions of this
Security 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
manually executed by or on behalf of the Trustee under the Indenture, this
Security shall not be entitled to any benefits under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, TEXAS-NEW MEXICO POWER COMPANY has caused
this Security to be duly executed.
Dated: TEXAS-NEW MEXICO POWER COMPANY
BY ----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Date: --------------------,
as Trustee,
by
-------------------------
Authorized Signatory
[REVERSE OF NOTE]
This Security is one of the duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "Securities"), of the series hereinafter specified, all
issued or to be issued under and pursuant to the Original Indenture dated as of
January 1, supplemented by the First Supplemental Indenture, dated as of January
1, 1999 (as so supplemented, the "Indenture"), duly executed and delivered by
the Company and Chase Bank of Texas, N.A., as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and any other indentures supplemental thereto reference is
hereby made for a statement of the respective rights, obligations, duties and
immunities thereunder of the Trustee and any agent of the Trustee, any Paying
Agent, the Company and the Holders of the Securities and of the terms upon which
the Securities are issued and are to be authenticated and delivered. This
Security is one of the series designated on the face hereof, which series is
limited in aggregate principal amount to $--------. By the terms of the
Indenture, additional Securities of other separate series, which may vary as to
date, aggregate principal amount, Stated Maturity, interest rate or method of
calculating the interest rate, redemption provisions and in other respects as
therein provided, may be issued in an unlimited amount.
Prior to the Release Date (as hereinafter defined), the
Securities of this series will be secured by first mortgage bonds (the "Senior
Note Mortgage Bonds") delivered by the Company to the Trustee for the benefit of
the Holders of the Securities, issued under the Indenture of Mortgage and Deed
of Trust, dated November 1, 1944, by and between the Company and U.S. Bank
Trust, N.A. (which is a successor to First Trust of Illinois, National
Association, which is successor trustee to Bank of America, Illinois, a banking
corporation organized under the laws of Illinois, which was formerly known, at
various times, as Continental Bank, a banking corporation organized under the
laws of Illinois, Continental Bank, National Association, and Continental
Illinois National Bank and Trust Company of Chicago) (the "First Mortgage
Trustee"), as supplemented and modified (the "First Mortgage Indenture")
pursuant to the Twenty-Sixth Supplemental Indenture dated January 1, 1999.
Reference is made to the First Mortgage Indenture and the Indenture for a
description of property mortgaged and pledged, the nature and extent of the
security, the rights of the holders of the first mortgage bonds under the First
Mortgage Indenture and of the First Mortgage Trustee in respect thereof, the
duties and immunities of the First Mortgage Trustee and the terms and conditions
upon which the Senior Note Mortgage Bonds are secured and the circumstances
under which additional first mortgage bonds may be issued.
FROM AND AFTER THE DATE CHOSEN BY THE COMPANY WHICH IS NOT
EARLIER THAN THE LATER OF (I) SUCH TIME AS ALL FIRST MORTGAGE BONDS (OTHER THAN
SENIOR NOTE MORTGAGE BONDS) ISSUED UNDER THE FIRST MORTGAGE INDENTURE HAVE BEEN
RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE FIRST MORTGAGE
BONDS "DEEMED TO BE PAID" OR AS TO WHICH THE ENTIRE INDEBTEDNESS IS PAID AND
DISCHARGED WITHIN THE MEANING USED IN ARTICLE 18 OF THE FIRST MORTGAGE
INDENTURE) AT, BEFORE OR AFTER THE MATURITY THEREOF AND (II) THE DATE AS OF
WHICH NO LIENS ON ANY PROPERTY OF THE COMPANY OR ANY SUBSIDIARY EXISTS (WHETHER
SUCH LIENS SECURE INDEBTEDNESS OF THE COMPANY OR ANY SUBSIDIARY OR ANY OTHER
PERSON), EXCEPT THAT THIS CLAUSE (II) SHALL NOT APPLY TO ANY LIEN TO THE EXTENT
DESCRIBED IN CLAUSES (A) THROUGH (K) OF SECTION 10.10 OF THE ORIGINAL INDENTURE
OR I THE LAST PARAGRAPH OF SUCH SECTION 10.10 (THE "RELEASE DATE"), THE SENIOR
NOTE MORTGAGE BONDS SHALL, AT THE OPTION OF THE COMPANY, CEASE TO SECURE THE
SECURITIES OF THIS SERIES IN ANY MANNER; PROVIDED THAT NO DEFAULT OR EVENT OF
DEFAULT HAS OCCURRED AND AT SUCH TIME IS CONTINUING UNDER THE INDENTURE. IN
CERTAIN CIRCUMSTANCES PRIOR TO THE RELEASE DATE AS PROVIDED IN THE INDENTURE,
THE COMPANY IS PERMITTED TO REDUCE THE AGGREGATE PRINCIPAL AMOUNT OF A SERIES OF
SENIOR NOTE MORTGAGE BONDS HELD BY THE TRUSTEE, BUT IN NO EVENT PRIOR TO THE
RELEASE DATE TO AN AMOUNT LESS THAN THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT
OF THE SERIES OF SECURITIES INITIALLY ISSUED CONTEMPORANEOUSLY WITH SUCH SENIOR
NOTE MORTGAGE BONDS.
These Securities will be redeemable, in whole or in part, at
the option of the Company, upon not less than 30 or more than 60 days' notice by
mail to the Holders of such Securities at their addresses in the Security
Register for such series, on any date (a "Redemption Date") at a redemption
price equal to the greater of (a) 100% of their principal amount of the
Securities to be redeemed and (b) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to such Redemption Date) discounted to such Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus [--] basis points, plus accrued and unpaid interest on
the principal amount being redeemed to such Redemption Date, all as calculated
by an Expert and delivered to the Trustee; provided, however, that installments
of interest on Securities that are due and payable on an Interest Payment Date
falling on or prior to the relevant Redemption Date shall be payable to the
holders of such Securities, registered as such at the close of business on the
relevant Record Date according to their terms and provisions of the Indenture.
"Treasury Rate" means, with respect to any Redemption Date for
the Securities, (a) the yield, under the heading that represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication that is
published weekly by the Board of Governors of the Federal Reserve System and
that establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities"
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding to the nearest month) or (b)
if such release (or any successor release) is not published during the week
immediately preceding the calculation date or does not contain such yields, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be
calculated on the third Business Day immediately preceding the Redemption Date.
"Comparable Treasury Issue" means, the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Securities.
"Independent Investment Banker" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, Warburg Dillon Read LLC, Chase Securities Inc.,
First Chicago Capital Markets, Inc. or NationsBanc Xxxxxxxxxx Securities LLC or,
if such firms are unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing appointed by
the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (a) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means each of Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, Warburg Dillon Read LLC, Chase Securities Inc.,
First Chicago Capital Markets, Inc., NationsBanc Xxxxxxxxxx Securities LLC and
their respective successors; provided however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company will substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
the 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 in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day immediately preceding such
Redemption Date.
In the event of redemption of this Security in part only, a
new Security or Securities 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.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the unpaid principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture and, upon such declaration, the Trustee can demand the
redemption of the Senior Note Mortgage Bonds as provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of all series to be affected
(voting as a class). The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the time, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest, if any, on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
