Contract
EXHIBIT
99.22
Dated
as
of December 23, 1997
To
TRUST
INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT
OF RENTS
Dated
as
of August 12, 1986
between
STATE
STREET BANK AND TRUST COMPANY, not
in
its
individual capacity, but solely
as
Owner
Trustee under a Trust
Agreement
dated as of August 12, 1986
with
MFS
Leasing Corp. (successor by assignment
to
Beneficial Leasing Group, Inc.)
and
THE
CHASE
MANHATTAN
BANK
(formerly
known as “Chemical Bank”),
as
Indenture Trustee
Original
Indenture recorded August 18, 1986 as Instrument No, 86-439408,
and
Supplemental Indenture No. 1 thereto dated as
of
November
18, 1986, recorded November 25,
1986 as
Instrument No. 86-650749,
and
1996
Supplemental Indenture recorded September 30, 1996 as
Instrument No. 96-0694410B
all
in
Maricopa County, Arizona Recorder’s Office.
This
1997
SUPPLEMENTAL INDENTURE
dated as
of December 23, 1997 to Trust Indenture, Mortgage, Security Agreement and
Assignment of Rents dated as of August 12, 1986, between STATE
STREET BANK AND TRUST COMPANY,
a
Massachusetts trust company (State Street), not in its individual capacity,
but
solely as Owner Trustee (the Owner
Trustee)
under a
Trust Agreement dated as of August 12, 1986, between State Street, whose address
is Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, with MFS
LEASING CORP. (successor by assignment to Beneficial Leasing Group, inc.),
a
Delaware corporation (the Trust
Agreement),
and
THE
CHASE MANHATTAN BANK
(formerly known as “Chemical Bank”), a New York banking corporation (the
Indenture
Trustee),
whose
address is 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx
00000.
WITNESSETH:
WHEREAS,
the
Owner Trustee (as successor owner trustee to The First National Bank
of
Boston, the owner trustee originally designated in and party to the Trust
Agreement) and the Indenture
Trustee have entered into a Trust Indenture, Mortgage, Security Agreement and
Assignment of Rents dated as of August 12, 1986 (as heretofore amended and
supplemented, the Indenture)
pursuant to which the Owner Trustee has issued the Fixed Rate
Notes;
WHEREAS,
Section
3.5(1) of the Indenture provides, among other things, that the Fixed
Rate Notes may be refunded with, in whole or in part, Additional
Notes;
WHEREAS,
Section
3.5(4) of the Indenture provides, among other things, that the Owner
Trustee and the Indenture Trustee may enter into indentures supplemental to
the
Indenture for, among other things, the purpose of establishing the terms,
conditions and designations of Additional
Notes;
WHEREAS,
the
Owner Trustee has received an authorization and request from the Owner
Participant to issue an Additional Note and, as a result, the Owner Trustee
desires to issue an Additional
Note to effect a refunding of a portion of the Fixed Rate Note due January
15,
2016 and to enter
into this 1997 Supplemental Indenture to establish the terms, conditions and
designations of such
Additional Note; and
WHEREAS,
Section
10.1 (viii) of the Indenture provides that, without the consent of Holders
of
the Notes Outstanding, the Indenture Trustee may, with the written consent
of
the Owner Trustee,
from time to time and at any time execute a supplement to the Indenture in
order
to evidence the issuance of and to provide the terms of Additional
Notes;
NOW,
THEREFORE,
in
consideration of the premises and
of
other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, the parties hereto as
follows:
SECTION
1. Definitions.
For
purposes hereof, capitalized terms used herein and not otherwise defined herein
have the meanings assigned to such terms in Appendix A to the
Indenture.
SECTION
2. Terms, Conditions and Designations of the Addition
Note.
2
(a) The
1997 Refunding Note.
There
is
hereby created and established a separate series of Notes of the Owner
Trustee
designated “Nonrecourse Promissory Note, 1997 Refunding Series” herein referred
to as the 1997
Refunding Note.
The
1997 Refunding Note shall be payable as to principal and bear interest
on
the
principal amount thereof as follows:
|
1997
Refunding
Note
Due
|
Interest
Rate
|
Principal
Amount
|
|
January
15,2016
|
10.15%
|
$28,900,000
|
The
1997
Refunding Note shall bear interest on the principal amount thereof from time
to
time Outstanding
from the date thereof until paid at the rate of interest set forth therein.
The
principal amount
of
the 1997 Refunding Note shall be payable as set forth in Schedule 1 attached
thereto. Installments
of interest on and principal of (and premium, if any, on) the 1997 Refunding
Note shall be
due
and payable on the dates specified in the 1997 Refunding Note. The 1997
Refunding Note shall
be
substantially in the form of Exhibit
A
hereto.
SECTION
3. Miscellaneous.
(a) Effective
Date of Supplemental Indenture.
This
1997
Supplemental Indenture shall be and become effective upon the execution hereof
by the parties hereto.
(b) Counterpart
Execution.
This
1997
Supplemental Indenture may be executed in any number of counterparts and by
the
different parties hereto on separate counterparts, each of which, when so
executed and delivered,
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
(c) Execution
as Supplemental Indenture.
This
1997
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to She Indenture and, as provided in the Indenture, this 1997
Supplemental Indenture forms a part thereof.
(d) Beneficiaries
Pursuant
to Arizona Revised Statutes, Section 33-404, (i) the beneficiary of the Trust
Agreement is MFS Leasing Corp., a Delaware corporation whose address is 000
Xxxxx Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of Xxxxx X. Xxxxxxx and (ii) the
beneficiaries of
this
Indenture are (A) Public Service Company of New Mexico, a New Mexico corporation
whose address is Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Attention
of
Secretary, a Holder of a Note,
and
(B)(1) First PV Funding Corporation, a Delaware corporation whose address is
Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of
President, and
(2)
by pledge and assignment, the banking corporation also acting as indenture
trustee hereunder the
address of which is set forth above, as their respective interests may appear,
each a Holder of a Note. Copies of the Trust Agreement and this Indenture are
available for inspection at the Indenture Trustee’s
Office.
3
IN
WITNESS WHEREOF,
the
Owner Trustee and the Indenture Trustee have each caused this 1997 Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized, all as of the date first set forth above,
STATE
STREET BANK AND TRUST COMPANY,
not
in
its individual capacity, but solely as Owner
Trustee
under
the Trust Agreement dated, as of August
12, 1986, with MFS Leasing Corp.,
By /s/Xxxxx
X. Seemore
Name: Xxxxx
X.
Seemore
Title: Assistant
Vice President
THE
CHASE MANHATTAN BANK,
as
Indenture
Trustee,
By /s/
X.X. Xxxxxxxx
Name: X.X.
Xxxxxxxx
Title: Vice
President
4
COMMONWEALTH
OF
MASSACHUSETTS
)
)ss:
COUNTY
OF
SUFFOLK
)
On
the 29
day of December, 1997, before me personally came Xxxxx X. Seemore,
to
me
be
known, who, being by me duly sworn, did acknowledge, depose and say that he
resides at Brockton,
Massachusetts;
that he is a Assistant Vice President of STATE
STREET BANK AND
TRUST COMPANY,
a. Massachusetts
trust company described in and which executed the foregoing
instrument; and that he signed his name thereto on behalf of said trust company
by authority
of the Board of Directors of such trust company.
/s/
Xxxxx X. Xxxxx
Notary
Public
Term
Expires: July 12, 2002
[NOTARIAL
SEAL]
5
STATE
OF
NEW YORK )
)
ss:
COUNTY
OF
NEW YORK )
On
the 29
day of December, 1997, before me personally came X.X. Xxxxxxxx,
to
me
be
known, who, being by me duly sworn, did acknowledge, depose and say that he
resides at 000 Xxxxxxxxx Xxx., Xxxxxx Xxxxxx,
Xxx
Xxxx;
that he is a Vice President of THE
CHASE MANHATTAN BNAK,
a New
York banking corporation, described in and
which
executed the foregoing
instrument; and that he signed his name thereto on behalf of said corporation
by
authority
of the Board of Directors of such trust company.
/s/
Xxxxxxxx XxXxxx
Notary
Public
Term
Expires:
Xxxxxxxx
XxXxxx
Notary
Public, State of New York
No.
01DE5013759
Qualified
in Kings County
Certificate
Filed in New York County
Commission
Expires July 15, 1999
[NOTARIAL
SEAL]
6
EXHIBIT
A
to
1997
SUPPLEMENTAL INDENTURE
1997
REFUNDING NOTE (DUE
JANUARY 15, 2016)
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933 AND MAY NOT BE TRANSFERRED,
SOLD
OR
OFFERED FOR SALE IN VIOLATION OF SUCH ACT
NONRECOURSE
PROMISSORY NOTE, 1997 REFUNDING SERIES (DUE
JANUARY 15, 2016)
XXXXX
XXXXXX XXXX AND TRUST COMPANY, not
in
its individual capacity,
but solely as Owner Trustee (Owner
Trustee)
under a
Trust Agreement dated as of August 12, 1986 with MFS Leasing Corp. (successor
by
assignment to Beneficial Leasing Group,
Inc.) (the Owner
Participant),
hereby
promises to pay to PUBLIC
SERVICE COMPANY’
OF NEW MEXICO,
or
registered assigns, the principal sum of $28,900,000 (Twenty
Eight Million Nine Hundred Thousand Dollars) on January 15, 2016 together with
interest (computed on the basis of a 360-day year of twelve 30-day months)
on
the aggregate amount of such principal sum remaining unpaid from time to time
from the Issue Date of this 1997
Refunding Note until due and payable, in arrears, at the rate of 10.15% per
annum. Payments of principal installments of this 1997 Refunding Note shall
be
made in the “principal amount
payable” and on the “payment dates” specified in Schedule 1 hereto, as such
Schedule may be revised from time to time in accordance with the Indenture
the
terms contained herein.
Payments of accrued interest on this 199? Refunding Note shall be made on
January 15 and
July
15 in each year, commencing January 15, 1998, lo and including the last “payment
date”
specified in Schedule 1 hereto.
Capitalized
terms used in this 1997 Refunding Note which are not otherwise defined
herein shall have the meanings ascribed thereto in the Indenture (as hereinafter
defined).
Interest
on any overdue principal and premium, if any, and (to the extent permitted
by applicable law) any overdue interest, shall be paid, on demand, from the
due
date thereof
at the rate per annum equal to 11.15% (computed on the basis of a 360-day year
of twelve
30-day
months) for the period during which any such principal, premium or interest
shall be
overdue.
7
In
the
event any date on which a payment is due under this 1997 Refunding Note is
not a
Business Day, then payment thereof may be made on the next succeeding Business
Day with
the
same force and effect as if made on the date on which such payment was
due.
All
payments of principal, premium, if any, and interest to be made by the Owner
Trustee
her xxxxxx and under the Trust Indenture, Mortgage, Security Agreement and
Assignment
of Rents dated as of August 12, 1986, as at any time heretofore or hereafter
amended or
supplemented in accordance with the provisions thereof (the Indenture),
between
the Owner Trustee and The Chase Manhattan Bank (formerly known as “Chemical
Bank”}, as trustee (the Indenture
Trustee),
shall
be made only from the Lease Indenture Estate and the Trust Estate, and
the
Indenture Trustee shall have no obligation for the payment thereof except to
the
extent that the Indenture Trustee shall have sufficient income or proceeds
from
the Lease Indenture Estate
to
make such payments in accordance with the terms of Article V of the Indenture.
The Holder
hereof, by its acceptance of this 1997 Refunding Note, agrees that such Holder
will look solely to the Trust Estate and the income and proceeds from the Lease
Indenture Estate to the extent available for distribution to the Holder hereof
as above provided, and that neither the Owner Participant nor, except as
expressly provided in the Indenture, the Owner Trustee nor the Indenture Trustee
is or shall be personally liable to the Holder hereof for any amounts payable
under this 1997 Refunding Note or for any performance to be rendered under
the
Indenture or any
other
Transaction Document or for any liability thereunder, provided,
however,
that in
the event
the
Lessee shall assume all the obligations of the Owner Trustee hereunder and
under
the Indenture
pursuant to Section 3.9(b) of the Indenture, then all the payments to be made
under this 1997
Refunding Note shall be made only from payments made by the Lessee under this
1997 Refunding
Note in accordance with the Assumption Agreement referred to in said Section
3.9(b) and
the
Holder of this 1997 Refunding Note agrees that in such event it will look solely
to the Lessee
for such payment.
The
Holder hereof, by its acceptance of this 1997 Refunding Note, agrees that
each
payment received by it hereunder shall be applied in the manner set forth in
Section 3.11 of the
Indenture. The Holder of this 1997 Refunding Note agrees, by its acceptance
hereof, that it will
duly
note by appropriate means all payments of principal or interest made hereon
and
that it will not in any event transfer or otherwise dispose of this 1997
Refunding Note unless and until all such notations have been duly
made.
This
1997
Refunding Nose is the 1997 Refunding Note referred to in the Indenture.
The Indenture permits the issuance of additional series of Notes, as provided
in
Section 3.5 of the Indenture, and the several series may be for varying
aggregate principal amounts and may have different maturity dates, interest
rates, redemption provisions and other terms.
The properties of the Owner Trustee included in the Lease Indenture Estate
are
pledged to
the
Indenture Trustee to the extent provided in the Indenture as security for the
payment of the principal
of and premium, if any, and interest on this 1997 Refunding Note and all other
Notes Issued and outstanding from time to time under the Indenture. Reference
is
hereby made to the Indenture
for a statement of the rights of the Holders of, and the nature and extent
of
the security for, this 1997 Refunding Note and of the rights of, and the nature
and extent of the security For, the
Holders of the other Notes and of certain rights of the Owner Trustee, as well
as for a statement
of the terms and conditions of the trust created by the Indenture, to all of
which terms and
conditions the Holder hereof agrees by its acceptance of this 1997 Refunding
Note.
8
This
1997
Refunding Note is subject to prepayment in whole as contemplated by Section
5.2 of the Indenture and in the circumstances therein described. In addition,
this 1997 Refunding
Note may, at the option of the Owner Trustee, be prepaid in whole or in part
at
any time by the Owner Trustee upon the giving by the Owner Trustee of not less
than two days’ notice (as provided in the Indenture) and at the following
prepayment prices (expressed as a percentage of the unpaid principal amount
hereof), together with interest accrued to the date fixed for
prepayment:
|
Twelve
Month
Period
Beginning
|
Prepayment
Price
|
|
January
15, 1997
|
106.090%
|
|
January
15, 1998
|
105.684
|
|
January
15, 1999
|
105.278
|
|
January
15, 2000
|
104.872
|
|
January
15, 2001
|
104.466
|
|
January
15, 2002
|
104.060
|
|
January
15, 2003
|
103.654
|
|
January
15, 2004
|
103.248
|
|
January
15, 2005
|
102.842
|
|
January
15, 2006
|
102.436
|
|
January
15, 2007
|
102.030
|
|
January
15, 2008
|
101.624
|
|
January
15, 2009
|
101.218
|
|
January
15, 2010
|
100.812
|
|
January
15, 2011
|
100.406
|
and
thereafter at the principal amount thereof, together with interest accrued
to
the xxxx fixed for prepayment.
This 1997 Refunding Note is not otherwise subject to optional prepayment in
whole
or
in part.
In
case
an Indenture Event of Default shall occur and be continuing, the unpaid
balance
of the principal of this 1997 Refunding Note and any other Notes, together
with
all accrued but unpaid interest thereon, may, subject to certain rights of
the
Owner Trustee or the Owner
Participant contained or referred to in the Indenture, be declared or may become
due and payable
in the manner and with the effect provided in the Indenture.
The
lien
upon the Lease Indenture Estate is subject to being legally discharged
prior
to
the maturity of this 1997 Refunding Note upon the deposit with the Indenture
Trustee of cash or certain securities sufficient to pay this 1997 Refunding
Note
when due or an assumption of the obligation of the Owner Trustee under this
1997
Refunding Note and the Indenture, in each case in accordance with the terms
of
the Indenture.
9
There
shall be maintained at the Indenture Trustee’s Office a register for the
purpose
of registering transfer- and exchanges of Notes in the manner provided in the
Indenture, The
transfer of this 1997 Refunding Note is registrable, as provided in the
Indenture, upon surrender
of this 1997 Refunding Note for registration of transfer duly accompanied by
a
written instrument
of transfer duly executed by or on behalf of the registered Holder hereof,
together with the amount of any applicable transfer taxes. Prior to the due
presentment for registration of transfer
of this 1997 Refunding Note, the Owner Trustee and the Indenture Trustee may
treat the person
in
whose name this 1997 Refunding Note is registered as the owner hereof for the
purpose of receiving payments of principal of and premium, if any, and interest
on this 1997 Refunding
Note and for all other purposes whatsoever, whether or not this 1997 Refunding
Note be
overdue, and neither the Owner Trustee nor the Indenture Trustee shall be
affected by notice to
the
contrary.
Principal,
premium, if any, and interest shall be payable, in the manner provided in the
Indenture, on presentment of this 1997 Refunding Note at the Indenture Trustee’s
Office, or
as
otherwise provided in the Indenture.
This
1997
Refunding Note shall be governed by, and construed in accordance with,
the
laws of the State of New York,
10
IN
WITNESS WHEREOF,
the
Owner Trustee has caused this 1997 Refunding Note
to
be duly executed as of the date hereof
STATE
STREET BANK AND TRUST COMPANY,
not
in
its individual capacity, but solely as Owner
Trustee
under
the Trust Agreement dated, as of August
12, 1986, with MFS Leasing Corp. (successor
by assignment
to Beneficial Leasing Group, Inc.)
(
By
Name:
Title:
THE
CHASE MANHATTAN BANK,
as
Indenture
Trustee,
By
Name:
Title:
11
SCHEDULE
TO
THE
1997 REFUNDING NOTE
(DUE
JANUARY 15, 2016)
Schedule
of Principal
Amortization
$28,900,000
Principal
Amount
|
Payment
Date
|
Principal
Amount
Payable
|
Principal
Amount
Paid
|
|
January
15, 1998
|
$584,000
|
|
|
July
15, 1998
|
614,000
|
|
|
January
15, 1999
|
495,000
|
|
|
July
15, 1999
|
469,000
|
|
|
January
15, 2000
|
432,000
|
|
|
July
15, 2000
|
496,000
|
|
|
January
15, 2001
|
461,000
|
|
|
July
15, 2001
|
530,000
|
|
|
January
15, 2002
|
492,000
|
|
|
July
15, 2002
|
566,000
|
|
|
January
15, 2003
|
526,000
|
|
|
July
15, 2003
|
604,000
|
|
|
January
15, 2004
|
561,000
|
|
|
July
15, 2004
|
644,000
|
|
|
January
15, 2005
|
599,000
|
|
|
July
15, 2005
|
687,000
|
|
|
January
15, 2006
|
639,000
|
|
|
July
15, 2006
|
735,000
|
|
|
January
15, 2007
|
682,000
|
|
|
July
15, 2007
|
784,000
|
|
|
January
15, 2008
|
728,000
|
|
|
July
15, 2008
|
837,000
|
|
|
January
15, 2009
|
777,000
|
|
|
July
15, 2009
|
894,000
|
|
|
January
15, 2010
|
830,000
|
|
|
July
15, 2010
|
954,000
|
|
|
January
15, 2011
|
886,000
|
|
|
July
15, 2011
|
1,020,000
|
|
|
January
15, 2012
|
946,000
|
|
|
July
15, 2012
|
1,086,000
|
|
|
January
15, 2013
|
1,010,000
|
|
|
July
15, 2013
|
1,160,000
|
|
|
January
15, 2014
|
1,078,000
|
|
|
July
15, 2014
|
1,250,000
|
|
|
January
15, 2015
|
1,152,000
|
|
|
July
15, 2015
|
1,325,000
|
|
|
January
I5, 2016
|
1,367,000
|
|
|
Principal
Amount
|
$28,900,000
|
12
