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PUBLIC SERVICE COMPANY OF NEW MEXICO
TO
THE CHASE MANHATTAN BANK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of March 11, 1998
To
INDENTURE
Dated as of March 11, 1998
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(Creating Seven Series of Farmington Senior Notes)
63036183.02
FIRST SUPPLEMENTAL INDENTURE, dated as of March 11, 1998, between
PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation duly organized
and existing under the laws of the State of New Mexico (herein called the
"Company"), having its principal office at Alvarado Square, Albuquerque, New
Mexico 87158, and THE CHASE MANHATTAN BANK, a New York banking corporation, as
Trustee (herein called the "Trustee") under the Indenture dated as of March 11,
1998 between the Company and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its senior notes (the "Notes"),
said Notes to be issued in one or more series as in the Indenture provided.
Pursuant to the terms of the Indenture, the Company desires to provide
for establishment of seven new series of its Notes to be respectively known as
set forth under the column entitled, "Series of Farmington Notes" in Exhibit A
hereto (collectively, the "Farmington Notes"), the form and substance of such
Farmington Notes and the terms, provisions, and conditions thereof to be set
forth as provided in the Indenture and this First Supplemental Indenture.
The City of Farmington, in the County of San Juan, an incorporated
municipality, a body politic and corporate, existing under the constitution and
laws of the State of New Mexico (together with its successors and assigns, the
"City") has issued seven series of its Pollution Control Revenue Refunding Bonds
(Public Service Company of New Mexico San Juan Project or San Juan and Four
Corners Projects) (collectively, the "Refunding Bonds") as described under the
column entitled "Pollution Control Revenue Refunding Bonds" in Exhibit A hereto.
The City has appointed First Security Bank of New Mexico, N.A. (formerly named
First National Bank in Alberquerque), as trustee (together with any successor
trustee under the Ordinances (as hereinafter defined), each a "Refunding Bond
Trustee"), with respect to each series of Refunding Bonds, all pursuant to and
as more particularly set forth in the Ordinance and supplements and, to the
extent applicable, amendments thereto, relating to such series of Refunding
Bonds described under the column entitled "City of Farmington Ordinance" in
Exhibit A hereto adopted by the City (collectively the "Ordinances").
The Company by the seven Guaranty Agreements (collectively the
"Guaranties" and individually, a "Guaranty") described under the column entitled
"Guaranties and First Supplemental Guaranties" in Exhibit A hereto related,
respectively, to the seven series of Refunding Bonds, each by and between the
Company and the applicable Refunding Bond Trustee, guaranteed payment of the
principal of and interest on, and the Purchase Price (as defined in the
Ordinances) of, the Refunding Bonds (the "Guaranteed Amounts"). The Company
issued certain of its First Mortgage Bonds ("First Mortgage Bonds") pursuant to
the Company's Indenture of Mortgage and Deed of Trust dated as of June 1, 1947
to The Bank of New York (formerly Irving Trust Company) and indentures
supplemental thereto as security for the performance of the Company's obligation
under the Guaranties to pay the respective Guaranteed Amounts.
1
Pursuant to each Ordinance and each supplement (collectively, the
"First Supplemental Guaranties"), to each of the corresponding Guaranties
between the Company and the Refunding Bond Trustee, each such supplement dated
as of March 11, 1998 and described under the column entitled, "Guaranties and
First Supplemental Guaranties" in Exhibit A hereto, the First Mortgage Bonds are
being exchanged for the Farmington Notes to be issued under this First
Supplemental Indenture.
Each of the seven new series of Farmington Notes will relate to one of
the seven series of Refunding Bonds and will be issued (x) in an aggregate
principal amount equal to the aggregate principal amount of the Refunding Bonds
of such series, maturing on such dates that upon the stated maturity date of the
Refunding Bonds of such series a corresponding principal amount of Farmington
Notes of such series shall mature, (y) bearing interest (but only from the
Initial Interest Accrual Date, if any, determined in accordance with Section
1.03 below) at the same interest rate borne by the Refunding Bonds of such
series and (z) be subject to redemption prior to maturity at the time, in the
amount, and at the same redemption premium, if any, borne by the Refunding Bonds
of such series. Each series of Farmington Notes will be delivered to the
corresponding Refunding Bond Trustee, as security for the performance of the
Company's obligation under the related Guaranty to pay the Guaranteed Amounts
under such Guaranty.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, and to make the Farmington Notes, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the acceptance of the
Farmington Notes by the corresponding Refunding Bond Trustee as collateral
security for the related series of Refunding Bonds, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Farmington Notes and the terms, provisions, and conditions thereof, it is
mutually agreed, for the equal and proportionate benefit of all Holders of the
Farmington Notes, as follows:
ARTICLE ONE
GENERAL TERMS AND CONDITIONS OF
THE FARMINGTON NOTES
SECTION 1.01. There shall be and are hereby authorized seven series of
Farmington Notes designated as follows:
1. "6.40% Notes, Series F-1993-A, Due August 15, 2023," limited in
aggregate principal amount to $100,000,000;
2. "6.30% Notes, Series F-1996-A, Due December 1, 2016," limited in
aggregate principal amount to $40,045,000;
2
3. "6.30% Notes, Series F-1996-B, Due December 1, 2016," limited in
aggregate principal amount to $37,000,000;
4. "5.80% Notes, Series F-1997-A, Due April 1, 2022," limited in
aggregate principal amount to $40,000,000;
5. "5.80% Notes, Series F-1997-B, Due April 1, 2022," limited in
aggregate principal amount to $37,000,000;
6. "5.80% Notes, Series F-1997-C, Due April 1, 2022," limited in
aggregate principal amount to $23,000,000; and
7. "6 3/8% Notes, Series F-1997-D, Due April 1, 2022," limited in
aggregate principal amount to $90,000,000.
The aggregate principal amount of each series of Farmington Notes to be
authenticated and delivered shall be the aggregate principal amount set forth
under the column entitled "Principal Amount" in Exhibit A hereto. Subject to the
provisions of Section 1.03 below, the Farmington Notes shall bear no interest
until an Initial Interest Accrual Date, if any, has been determined in
accordance with Section 1.03 below. The Farmington Notes shall mature and the
principal thereof shall be due and payable, together with all accrued and unpaid
interest thereon, on their respective Stated Maturities set forth under the
column entitled "Stated Maturity of Principal" in Exhibit A hereto, and shall be
issued in the form of registered Farmington Notes without coupons, in
denominations of $1,000 and any integral multiple thereof. Each of the
Farmington Notes shall be dated as of the date of its authentication.
SECTION 1.02. The Farmington Notes shall be issued to and registered in
the name of the Refunding Bond Trustee under the applicable Ordinance and shall
be non-transferable, except as may be required to effect transfer to any
successor trustee to the Refunding Bond Trustee under such Ordinance. Principal
of, and premium, if any, and interest on the Farmington Notes will be payable at
the office or agency of the Company in The City and State of New York. The
Farmington Notes shall be deemed fully paid, and the obligation of the Company
thereunder shall be terminated, to the extent and in the manner provided in
Section 1.05.
SECTION 1.03. Each of the seven series of Farmington Notes has been
issued to the corresponding Refunding Bond Trustee to secure the obligations of
the Company under the related Guaranty to pay the Guaranteed Amounts under such
Guaranty.
In the event of failure by the Company to make any payment of any
Guaranteed Amounts when and as required by the Company under any of the
Guaranties, the related series of Farmington Notes shall bear interest at the
annual rate applicable to such series as set forth under the column entitled
"Interest Rate" in Exhibit A hereto from the last day to which interest on the
corresponding series of Refunding Bonds has been paid in full prior to the
failure of the Company to pay such Guaranteed Amounts (such date being herein
defined as the "Initial Interest Accrual Date"), and interest at such rate shall
be payable on the date due with respect to such Refunding Bonds, commencing on
the first Interest Payment Date applicable to such series set forth in the
column entitled "Interest Payment Date" in Exhibit A hereto ("Interest Payment
Date") following the Initial Interest Accrual Date.
3
The Trustee may conclusively presume that no payments with respect to
interest on the Farmington Notes are due unless and until the Trustee shall have
received a written certificate from the applicable Refunding Bond Trustee,
signed by an authorized officer of such Refunding Bond Trustee, certifying that
the Company has failed to make a payment of any Guaranteed Amount when and as
required to be made by it under any of the Guaranties and specifying such
Guaranty, such Guaranteed Amount, the interest rate, the Initial Interest
Accrual Date, the Interest Payment Date and such other terms as shall be
applicable to the payment of interest on the applicable series of Farmington
Notes. The Trustee may rely and shall be fully protected in acting upon any such
certificate and shall have no duty with respect to the terms specified in any
such certificate other than to make them available for inspection by the
Company.
SECTION 1.04. The Farmington Notes shall be redeemed, in whole or in
part, at the principal amount thereof plus any premium, and any accrued interest
from the Initial Interest Accrual Date to the redemption date, if the Refunding
Bond Trustee notifies the Trustee in writing that Refunding Bonds are subject to
redemption as provided in Section 3.02 of the Ordinances. Any such notice must
be received by the Trustee no later than five days (unless a shorter period of
time is acceptable to the Trustee) prior to any redemption date fixed for the
Refunding Bonds to be redeemed and shall specify the principal amount of such
Refunding Bonds anticipated as of the date of such notice to be redeemed, the
redemption date, the redemption premium, if any, and the amount of accrued
interest anticipated to be paid thereon. In the event such notice is given to
the Trustee as hereinabove provided, the redemption date of the applicable
series of Farmington Notes shall be the date on which the corresponding series
of Refunding Bonds are to be redeemed, and on such date the said Farmington
Notes shall be redeemed in the same principal amount as the corresponding series
of Refunding Bonds in fact redeemed, pursuant to Section 3.01 of the Ordinances.
The Company shall deposit in trust with the Trustee on the redemption date an
amount of money sufficient to pay the principal amount, plus any premium and
accrued interest, if any, to the date fixed for redemption on the Farmington
Notes to be redeemed (the "Redemption Price"). Upon presentation to the Trustee
of any of the Farmington Notes by a Refunding Bond Trustee for payment of the
Redemption Price, such Farmington Notes so presented shall be redeemed and paid
in full. However, if, in lieu of presenting the Farmington Notes due for
redemption, the Refunding Bond Trustee shall deliver such Farmington Notes to
the Trustee for cancellation, then and in that event, subject to Section 1.05,
such of the Farmington Notes so presented for cancellation shall be deemed fully
paid, and if any moneys shall have been deposited with the Trustee for such
redemption, then such moneys shall be paid over to the Company, and the
Farmington Notes so surrendered shall be canceled in accordance with Section
1.05.
SECTION 1.05 Upon surrender by a Refunding Bond Trustee or the Company
to the Trustee hereunder of any of the Farmington Notes for cancellation, such
notes shall be canceled by the Trustee and delivered to the Company and shall be
deemed fully paid and the obligations of the Company thereunder terminated.
4
SECTION 1.06 The Farmington Notes shall be defeasible pursuant to
Section 13.02 and Section 13.03 of the Indenture.
ARTICLE TWO
FORM OF FARMINGTON NOTES
SECTION 2.01. The Farmington Notes and the Trustee's certificate of
authentication to be endorsed thereon are to be substantially in the following
form:
Pursuant to Section 1.02 of the First Supplemental Indenture dated as
of March 11, 1998, supplemental to the Indenture, dated as of March 11, 1998,
between Public Service Company of New Mexico and The Chase Manhattan Bank, as
Trustee, this Note is nontransferable, except as may be required to effect
transfer to any successor trustee to the Refunding Bond Trustee (as defined
herein).
PUBLIC SERVICE COMPANY OF NEW MEXICO
____% Notes, Series ____,Due ________________
No. $
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PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation
organized and existing under the laws of the State of New Mexico (herein called
the "Company" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to First
Security Bank of New Mexico, N.A., as Trustee under the Ordinance (as defined
herein) on ___*_____ (unless this Note shall have been called for previous
redemption and provision made for the payment of the redemption price thereof),
the principal sum of $* ____________ and to pay interest thereon from the
Initial Interest Accrual Date (as defined herein) to the date of payment of this
Note at the rate of *_______% per annum payable on the first Interest Payment
Date of *______ and *_______ following the Initial Interest Accrual Date.
Payment of the principal of, and premium, if any, and any such interest
on this Note will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
This Note is one of a duly authorized issue of senior notes of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of March 11, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered, to all of which
the Holder, by accepting this Note, assents. This Note is one of the series
designated on the face hereof, limited in aggregate principal amount to
$*............
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* Insert as appropriate for each series of Farmington Notes, the designation,
principal amount, Interest Rate, Stated Maturities of Principal and Interest,
Interest Payment Dates and other particulars specified in Exhibit A hereto with
respect to such series.
5
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 Notes 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 principal amount of the Notes at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and to waive certain past defaults under the
Indenture and their consequences, provided, however, that if any such past
default affects more than one series of Notes, the Holders of a majority in
aggregate principal amount of the Outstanding Notes of all such series,
considered as one class, shall have the right to waive such past default, and
not the Holders of the Notes of any one such series. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing, considered
as one class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of all series at the time
Outstanding in respect of which an Event of Default shall have occurred and be
continuing, considered as one class, a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement of
any payment of principal hereof or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
6
The Notes of this series have been issued to First Security Bank of New
Mexico, N.A., Albuquerque, New Mexico, as trustee (the "Refunding Bond
Trustee"), under Ordinance No. *____ adopted by the City of Farmington, New
Mexico (the "City"), on *_________________, as supplemented by Resolution No.
____________ adopted by the City on *_______________ [and amended by Amendatory
Ordinance No. _________ adopted by the City on *_________________] and as
supplemented [and amended] by [Amendatory and] Supplemental Ordinance No.
_*__________ adopted by the City on February 10, 1998 (collectively, as so
supplemented and amended, the "Ordinance"), to secure the guarantee by the
Company under a Guaranty Agreement dated as of *____ between the Company and the
Refunding Bond Trustee and under a First Supplement to *________ Guaranty
Agreement dated as of *____ between the Company and the Refunding Bond Trustee
relating to the Refunding Bonds (collectively, the "Guaranty"), of payment of
the principal of and interest due (the "Guaranteed Amounts") on the Pollution
Control Revenue Refunding Bonds, 199*___ Series *___ (Public Service Company of
New Mexico [San Juan Project] [San Juan and Four Corners Projects]), issued by
the City under the Ordinance (the "Refunding Bonds").
In the event of failure by the Company to make any payment of any
Guaranteed Amount when and as required to be made by it under the Guaranty, this
Note shall bear interest from the last date to which interest on such Refunding
Bonds has been paid in full prior to the failure of the Company to pay such
Guaranteed Amount (such date being herein defined as the "Initial Interest
Accrual Date"), at the rate of *________% per annum payable on the [first]
[fifteenth] day of *__________ and the [first][fifteenth] day of *___________ of
each year, commencing on the first Interest Payment Date following the Initial
Interest Accrual Date.
The Trustee may conclusively presume that no payments with respect to
interest on the Notes of this series are due unless and until the Trustee shall
have received a written certificate from the Refunding Bond Trustee or successor
trustee under the Ordinance, signed by an authorized officer of the Refunding
Bond Trustee or such successor trustee, certifying that the Company has failed
to make a payment of any Guaranteed Amount when and as required to be made by it
under the Guaranty and specifying such Guaranteed Amount, the Initial Interest
Accrual Date and such other matters, if any, as shall be pertinent to the
payment of interest on the Notes of this series. The Trustee may rely and shall
be fully protected in acting upon any such certificate and shall have no duty
with respect to the matters specified in any such certificate other than to make
it available for inspection by the Company.
Upon the surrender for cancellation, at any time or from time to time,
of Notes of this series by the Refunding Bond Trustee, successor trustee under
the Ordinance, or the Company to the Trustee, the Notes so surrendered shall be
deemed fully paid and the obligations of the Company thereunder shall be
terminated, and such Notes shall be canceled by the Trustee and delivered to the
Company.
This Note is nontransferable except to effect transfer to any successor
trustee to the Refunding Bond Trustee, any such transfer to be made as provided
in the Indenture and subject to certain limitations therein set forth, by the
registration of transfer of this Note in the Note Register, upon surrender of
this Note for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the successor
Refunding Bond Trustee.
7
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Notes, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, employee, officer or director,
as such, past, present or future of the Company or of any predecessor or
successor corporation (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
Notes are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder,
employee, officer or director, past, present or future, of the Company or of any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Notes or to be implied
herefrom or therefrom, and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Notes.
The Notes 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,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes 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 Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series shall be redeemable as provided in the First
Supplemental Indenture, dated as of March 11, 1998, supplemental to the
Indenture.
8
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
---------------------
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By
--------------------------
[TITLE]
Attest:
- ----------------------------
CERTIFICATION OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK, as Trustee
By
--------------------------
Authorized Officer
9
ARTICLE THREE
ORIGINAL ISSUE OF FARMINGTON NOTES
SECTION 3.01. The Farmington Notes of the seven series set forth in the
column entitled "Series of Farmington Notes" in the respective principal amounts
thereof set forth under the column entitled Principal Amount" in Exhibit A
hereto , may, upon execution of this First Supplemental Indenture, or from time
to time thereafter, be executed on behalf of the Company by any officer or
employee authorized to do so by a Board Resolution, under its corporate seal
affixed thereto or reproduced thereon attested by its Secretary or by one of its
Assistant Secretaries and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Farmington Notesin
accordance with a Company Order delivered to the Trustee by the Company.
ARTICLE FOUR
PAYING AGENT AND REGISTRAR
SECTION 4.01. The Chase Manhattan Bank will be the Paying Agent and
Note Registrar for the Farmington Notes.
ARTICLE FIVE
SUNDRY PROVISIONS
SECTION 5.01. The Company hereby covenants that so long as any of the
Farmington Notes shall remain outstanding, the Company shall deliver to the
Trustee as soon as available copies (certified by an officer or employee of the
Company to be true) of the Ordinances, the corresponding Installment Sale
Agreement or Amended and Restated Installment Sale Agreement (as defined in the
Ordinances), the Guaranties and copies of any supplements, amendments or
replacements thereto, together with such other documents and instruments as the
Trustee may reasonably request from time to time in connection with the
transactions contemplated hereby. The Trustee shall have no duty to examine or
take any other action with respect to any such documents or instruments so
received by it, other than to retain in its files any of same which it so
receives and to make same available for inspection during normal business hours
by any owner of the Farmington Notes.
SECTION 5.02. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Farmington Notes or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form
of the Farmington Notes that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
SECTION 5.03. The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
10
SECTION 5.04. The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this First Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which recitals are made by the Company solely. In general, each and
every term and condition contained in Article VI of the Indenture shall
apply to and form part of this First Supplemental Indenture with the
same force and effect as if the same were herein set forth in full with
such omissions, variations, and insertions, if any, as may be
appropriate to make the same conform to the provisions of this First
Supplemental Indenture.
To the extent permitted by Section 6.01 of the Indenture, and without
limitation of Section 6.03 of the Indenture, the Trustee may rely and
shall be protected in acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness,
or other paper or document (including, without limitation, the
Ordinances, the Guaranties, the First Supplemental Guaranties, or any
notice, certificate, or other document provided for in the Ordinances,
the Guaranties, the First Supplemental Guaranties or this First
Supplemental Indenture) believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties.
SECTION 5.05. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
11
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.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By:
--------------------------------
M.H. Maerki
Senior Vice President
and Chief Financial Officer
Attest:
- --------------------
Secretary
THE CHASE MANHATTAN BANK, as Trustee
By:
--------------------------------
T.J. Foley
Vice President
Attest:
- --------------------
Senior Trust Officer
STATE OF NEW MEXICO )
) ss.:
COUNTY OF BERNALILLO )
On the ____ day of March, 1998 before me personally came M.H. Maerki,
to me known, who, being by me duly sworn, did depose and say that he is Senior
Vice President and Chief Financial Officer of Public Service Company of New
Mexico, one of the corporations 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.
----------------------------
Notary Public
My Commission Expires:
----------------------------
12
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of March, 1998, before me personally came T.J. Foley,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of The Chase Manhattan Bank, one of the corporations 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.
----------------------------
Notary Public
50022
13
EXHIBIT A - DESCRIPTION OF 7 SERIES OF FARMINGTON NOTES
SAN JUAN AND FOUR CORNERS PROJECTS
Guaranties
Series of Interest City of and First
Pollution Control Farmington Principal Stated Maturity Interest Payment Farmington Supplemental
Revenue Refunding Bonds Notes Amount of Principal Rate Dates Ordinance Guaranties
----------------------- -------------- --------- --------------- -------- -------- ---------- ------------
1. $100,000,000 City of 6.40% Notes, $100,000,000 August 15, 6.40% February 15 Ordinance No. Guaranty Agree-
Farmington, New Series F-1993-A, 2023 August 15 93-995 adopted ment dated
Mexico, 6.40% Pollu- Due August 15, Aug. 24, 1993 as August 15, 1993;
tion Control Revenue 2023 supplemented by First Supple-
Refunding Bonds, 1993 Resolution No. ment to 1993A
Series A (Public 93-748 adopted Guaranty
Service Company of Aug. 24, 1993 and Agreement dated
New Mexico San Juan as supplemented by as of March 11,
and Four Corners Supplemental 1998.
Projects). Ordinance No. 98-
1065 adopted on
February 10, 1998
2. $40,045,000 City of 6.30% Notes, $40,045,000 December 1, 6.30% June 1 Ordinance No. Guaranty Agree-
Farmington, New Mexico Series F-1996-A, 2016 December 1 96-1049, adopted ment dated
6.30% Pollution Control Due December 1, Nov. 19, 1996 as December 1, 1996
Control Revenue Re- 2016 supplemented by First Supple-
funding Bonds, 1995 Resolution No. 96- ment to 1996A
Series A (Public Service 866 adopted Nov. Guaranty Agree-
Company of New Mexico 19, 1996 and as ment dated as
San Juan Project). amended by Amenda- of March 11,
tory Ordinance 1998.
No. 96-1050
adopted on Nov.
26, 1996 and as
supplemented and
amended by Amenda-
tory and Supple-
mental Ordinance No.
98-1066 adopted on
February 10, 1998
3. $37,000,000 City of 6.30% Notes, $37,000,000 December 1, 6.30% June 1 Ordinance No. 96- Guaranty Agree-
Farmington, New Mexico Series F-1996-B, 2016 December 1 1049, adopted Nov. ment dated
6.30% Pollution Con- Due December 1, 19, 1996 as sup- December 1,1996
trol Revenue Refunding 2016 plemented by First Supplement
Bonds, 1996 Series B Resolution No. 96- to 1996B
(Public Service Company 866 adopted Nov.19, Guaranty Agree-
Mexico San Juan Project) 1996 and as amended ment dated as
by Amendatory Ordi- of March 11,
nance No. 96-1050 1998
adopted on Nov. 26,
1996 and as supple-
mented No. 98-1066
adopted on February
10, 1998
4. $40,000,000 City of 5.80% Notes, $40,000,000 April 1, 2022 5.80% April 1 Ordinance No. 97- Guaranty Agree-
Farmington, New Mexico Series F-1997-A, October 1 1052, adopted Jan. ment dated
Pollution Control Due April 1, 2022 28, 1997 as supple- February 1,1997
Revenue Refunding mented byResolution First supplement
Bonds, 5.80% 1997 No. 97-870, adopted to 1997A
Series A (Public Ser- Jan. 28, 1997 as Guaranty Agree-
vice Company of New amended by Amenda- ment dated as
Mexico San Juan tory Ordinance No. of March 11,
Project). 97-1053 adopated 1998.
Feb. 11, 1997 and
as supplemented by
Supplemental Ordi-
nance No. 98-1067
adopted on February
10, 1998
5. $37,000,000 City of 5.80% Notes, $37,000,000 April 1, 2022 5.80% April 1 Ordinance No. 97- Guaranty Agree-
Farmington, New Mexico Series F-1997-B, October 1 1052, adopted Jan. ment dated
Pollution Control Due April 1, 2022 28, 1997 as supple- February 1, 1997
Revenue Refunding mented byResolution First Supplement
Bonds 5.80% 1997 No. 97-870, adopted to 1997C
Series B (Public Jan 28, 1997 as Guaranty Agree-
Service Company of amended by Amenda- ment dated as
New Mexico San Juan tory Ordinance No. of March 11,
Project). 97-1053 adopted 1998.
Feb. 11, 1997 and
as supplemented by
Supplemental Ordi-
nance No. 98-1067
adopted on February
10, 1998
6. $23,000,000 City of 5.80% Notes, $23,000,000 April 1, 2022 5.80% April 1 Ordinance No. 97- Guaranty Agree-
Farmington, New Mexico Series F-1997-C, October 1 1052, adopted Jan. ment dated
Pollution Control Due April 1, 2022 28, 1997 as supple- February 1, 1997
Revenue Refunding mented byResolution First Supplement
Bonds, 5.80% 1997 No. 97-870, adopted to 1997C
Series C (Public Jan 28, 1997 as Guaranty Agree-
Service Company of amended by Amenda- ment dated as
New Mexico San Juan tory Ordinance No. of March 11,
Project). 97-1053 adopted 1998.
Feb. 11, 1997 and
as supplemented by
Supplemental Ordi-
nance No. 98-1067
adopted on February
10, 1998
7. $90,000,000 City of 6 3/8% Notes, $90,000,000 April 1, 2022 6.3/8% April 1 Ordinance No. 97- Guaranty Agree-
Farmington, New Mexico Series F-1997-D, October 1 1052, adopted Jan. ment dated
6 3/8% Pollution Due April 1, 2022 28, 1997 as supple- February 1, 1997
Control Revenue Re- mented byResolution First Supplement
funding Bonds, 1997 No. 97-870, adopted to 1997C
Series D (Public Jan 28, 1997 as Guaranty Agree-
Service Company of amended by Amenda- ment dated as
New Mexico San Juan tory Ordinance No. of March 11,
Project). 97-1053 adopted 1998.
Feb. 11, 1997 and
as supplemented by
Supplemental Ordi-
nance No. 98-1067
adopted on February
10, 1998