SUPPLEMENTAL INDENTURE NO. 3
Dated as of March 8, 1995
To
TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
Dated as of December 16, 1985, as heretofore supplemented
between
THE FIRST NATIONAL BANK OF BOSTON, not
in its individual capacity but solely
as Owner Trustee under a Trust
Agreement dated as of December 16,
1985 with Public Service
Company of New Mexico
and
CHEMICAL BANK,
as Indenture Trustee
Original Indenture recorded December 31, 1985, as Instrument No. 85-623270,
re-recorded April 17, 1986, as Instrument No. 86-187559, and confirmed
by document recorded April 25, 1986, as Instrument No. 86-203241,
and Supplemental Indenture No. 1 thereto, dated as of July 15, 1986,
recorded July 17, 1986 as Instrument No. 86-367465, and Supplemental
Indenture No. 2 thereto, dated as of November 18, 1986, recorded
November 25, 1986 as Instrument No. 86-650741, all in Maricopa
County, Arizona Recorder's Office
SUPPLEMENTAL INDENTURE No. 3 dated as of March 8, 1995 to Trust
Indenture, Mortgage, Security Agreement and Assignment Of Rents dated as of
December 16, 1985, between THE FIRST NATIONAL BANK OF BOSTON, a national
banking association (FNB), not in its individual capacity, but solely as
Owner Trustee (the Owner Trustee) under a Trust Agreement dated as of
December 16, 1985, between FNB, whose address is Blue Hills Office Park, Mail
Stop 45-02-15, 150 Royall Street, Canton, Massachusetts 02021, with Public
Service Company of New Mexico, a New Mexico corporation (successor by
assignment to the interest originally held by Burnham Leasing Corporation, a
New York corporation), and CHEMICAL BANK, a New York banking corporation (the
Indenture Trustee), whose address is 450 West 33rd Street, New York, New York
10001, Attention Corporate Trustee Administration Department.
W I T N E S S E T H:
WHEREAS, the Owner Trustee and the Indenture Trustee have entered
into a Trust Indenture, Mortgage, Security Agreement and Assignment of Rents
dated as of December 16, 1985 (as heretofore supplemented and amended, the
Indenture);
WHEREAS, the Owner Trustee and the Indenture Trustee desire to
amend the Indenture as set forth in Section 2 hereof;
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 agree as follows:
SECTION 1. Definitions.
For purposes hereof, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in
Appendix A to the Indenture.
SECTION 2. Amendments.
(a) Background. On September 2, 1992, the Lessee became the
successor by assignment to the right, title and interest of the original
Owner Participant in and to the Transaction Documents and the Trust Estate.
Public Service Company of New Mexico ("PNM"), both as Lessee and Owner
Participant, has determined that, from time to time, it may cause the
prepayment, in whole or in part, of the Notes Outstanding under the
Indenture. PNM, Funding Corp, the Owner Trustee and FNB (in its capacity as
Owner Trustee under the Trust Agreement dated as of August 12, 1986 with PNM
(as successor by assignment to the original owner participant thereunder))
have entered into a Note Prepayment Agreement dated as of January 12, 1995
(the "Note Prepayment Agreement"). Among other things, the Note Prepayment
Agreement contemplates that this Supplemental Indenture No. 3 will be
executed and delivered.
(b) Amendment to Section 3.8. The requirement of Section 3.8 of
the Indenture that final payment of a Note be made only against surrender of
such Note is hereby deleted.
(c) Amendment to Section 3.9(a). The following sentence is
added at the end of Section 3.9(a):
"In the event that (in accordance with the applicable provisions
of a Note) the Owner Trustee determines to prepay a Note in part,
the Owner Trustee may apply the principal portion of such
prepayment to prepay such remaining installments of principal in
such amounts as the Owner Trustee shall identify in its notice of
prepayment (such notice of prepayment to be accompanied by an
appropriately prepared replacement Schedule I to the Note being
prepaid)."
(d) Amendment to Section 3.9(c). Anything in Section 3.9(c) of
the Indenture and any provision of any Note to the contrary notwithstanding,
in the event of a prepayment of a Note, prior notice of such prepayment need
not be given if the same institution is both the Indenture Trustee and the
holder, assignee and pledgee of the Note to be prepaid.
(e) Amendment to Section 4.3. Anything in Section 4.3 of the
Indenture to the contrary, at the request of the Owner Trustee, the Indenture
Trustee shall not destroy cancelled Notes but shall return the same marked
"CANCELLED" to the Owner Trustee.
(f) Amendment to Section 5.1. Clause first of Section 5.1 is
hereby amended and restated in its entirety as follows:
"first, so much of such payment as shall be required
to pay in full the aggregate amount of the payment
or payments of principal and/or premium and/or
interest (as well as any interest on overdue
principal or, to the extent permitted by law,
interest) then due and unpaid on all Notes (whether
a scheduled installment of principal and interest or
amounts due in respect of principal, premium and
accrued interest in the event that the Owner Trustee
shall exercise its prepayment option in whole or in
part) shall be distributed to the Holders of the
Notes ratably, without priority of one over the
other, in the proportion that the aggregate amount
of such payment or payments then due and unpaid on
all Notes held by each such Holder on such date
bears to the aggregate amount of such payment or
payments then due and unpaid on all Notes
Outstanding on such date, without priority of
principal, premium or interest over any of them;"
SECTION 3. Miscellaneous.
(a) Effective Date of Supplemental Indenture.
This Supplemental Indenture No. 3 shall be and become effective
upon the execution hereof by the parties hereto.
(b) Counterpart Execution.
This Supplemental Indenture No. 3 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 Supplemental Indenture No. 3 is executed and shall be
construed as an indenture supplemental to the Indenture and, as provided in
the Indenture, this Supplemental Indenture No. 3 forms a part thereof.
(d) Disclosure.
Pursuant to Arizona Revised Statutes Section 33-401, the
beneficiary of the Trust Agreement is Public Service Company of New Mexico,
a New Mexico corporation. The address of the beneficiary is Alvarado Square,
Albuquerque, New Mexico 87158, Attention: Treasurer. A copy of the Trust
Agreement is available for inspection at the offices of the Owner Trustee at
Blue Hills Office Park, Mail Stop 45-02-15, 150 Royall Street, Canton,
Massachusetts 02021, Attention of Corporate Trust Division.
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee
have each caused this Supplemental Indenture No. 3 to be duly executed by
their respective officers thereunto duly authorized, all as of the date first
set forth above.
THE FIRST NATIONAL BANK OF BOSTON,
not in its individual
capacity, but solely as Owner
Trustee under the Trust
Agreement dated as of December
16, 1985, with Public Service
Company of New Mexico
By
-------------------------
Name:
Title:
CHEMICAL BANK,
By
-------------------------
Vice President
CONSENT AND DIRECTIVE
The undersigned, as trustee under the Collateral Trust Indenture
(as defined in Appendix A to the within-mentioned Indenture), is the assignee
and pledgee of First PV Funding Corporation in respect of the Notes which are
presently outstanding under the Indenture being supplemented by the foregoing
instrument. In accordance with the provisions of such Collateral Trust
Indenture (as amended by the 1995 Supplement thereto dated as of February 14,
1995) and pursuant to the Consolidated Joint Officers' Certificate, Company
Request, Lessee Request and Notice dated March 8, 1995, the undersigned, as
such assignee and pledgee, and as holder of all of the Notes outstanding
under the Indenture, hereby CONSENTS to the foregoing instrument and DIRECTS
the Indenture Trustee to execute and deliver the same.
CHEMICAL BANK, as
Collateral Trust Trustee
By:
-------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of March, 1995, before me personally came
, to me known, who, being by me duly sworn, did acknowledge, depose
and say that he resides at , Massachusetts; that he is an
of THE FIRST NATIONAL BANK OF BOSTON, a national banking
association, described in and which executed the foregoing instrument; and
that he signed his name thereto on behalf of said association by authority of
the Board of Directors of such association.
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Notary Public
[NOTARIAL SEAL] Term Expires:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of March, 1995, before me personally came
, to me known, who, being by me duly sworn, did acknowledge, depose
and say that he resides at , ; that he is a Vice
President of CHEMICAL BANK, 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
corporation.
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Notary Public
[NOTARIAL SEAL] Term Expires: