EXHIBIT 1 to
Consent and Directive
REFUNDING AGREEMENT NO. 8A
REFUNDING AGREEMENT NO. 8A dated as of December 23, 1997 (this
"Refunding Agreement") between PUBLIC SERVICE COMPANY OF NEW MEXICO, a New
Mexico corporation ("PNM"), the corporation identified on Schedule I hereto as
the Owner Participant (the "Owner Participant"), 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 the Trust
Agreement dated as of August 12, 1986 (the "Trust Agreement") with the Owner
Participant, THE CHASE MANHATTAN BANK, a New York banking corporation (formerly
known as "Chemical Bank") ("Chase"), not in its individual capacity, but solely
as lease indenture trustee (the "Indenture Trustee") under the Trust Indenture,
Mortgage, Security Agreement and Assignment of Rents dated as of August 12, 1986
(as heretofore supplemented, the "Lease Indenture") with the Owner Trustee and
FIRST PV FUNDING CORPORATION, a Delaware corporation ("Funding Corporation").
R E C I T A L S
A. PNM, the Owner Participant, the Owner Trustee, the
Indenture Trustee and Funding Corporation are party to (i) the Participation
Agreement dated as of August 12, 1986 (as heretofore amended, the "Participation
Agreement") and (ii) Refunding Agreement No. 8 dated as of September 27, 1996
(the "1996 Refunding Agreement"). State Street is the successor as owner trustee
to The First National Bank of Boston ("FNB"), the owner trustee originally
designated in and party to the Participation Agreement and the other Transaction
Documents (such term and the other capitalized terms used in this Refunding
Agreement without definition being defined as provided in Section 1 below) to
which FNB was party in its capacity as owner trustee.
B. Funding Corporation, PNM and Chase are parties to the
Collateral Trust Indenture dated as of December 16, 1985 (as heretofore
supplemented and amended, the "Collateral Trust Indenture").
C. Pursuant to the 1996 Refunding Agreement, the Owner Trustee
(i) effected a partial prepayment of $1,172,000 in respect of the 10.15%
Non-Recourse Promissory Note, Fixed Rate Series (Due January 15, 2016), dated
November 25, 1986 (the "Subject Note"), theretofore issued by the Owner Trustee
and (ii) issued its Non-Recourse Promissory Note, 1996 Refunding Series (Due
January 15, 2016), issued as of July 15, 1996 (the "PNM Note"), in the original
principal amount of $1,172,000 to PNM. Pursuant to Section 8(a) hereof, the
Owner Trustee has determined to effect a further partial prepayment of
$28,900,000 of the Subject Note (the "Prepayment") on the Closing Date.
D. Funding Corporation has determined to effect a partial
optional redemption of the securities outstanding under the Collateral Trust
Indenture (the "Redemption"). Funding Corporation intends to redeem $28,316,000
of its 10.15% Lease Obligation Bonds Series 1986B, Due January 15, 2016 (the
"Series B Bonds").
E. The Redemption will occur on January 20, 1998; on such
date, the applicable premium is 5.684% with respect to the $28,316,000 of Series
B Bonds being redeemed on such date. The Prepayment will occur on December 30,
1997; on such date the applicable premium is 6.090% with respect to the
$28,900,000 of the Subject Note being redeemed. The parties have agreed that,
anything in the Subject Note to the contrary not withstanding, the prepayment
price applicable to the Prepayment shall be 105.684% of the principal amount
being prepaid together with interest accrued to the Closing Date, except that,
with respect to $584,000 of such principal amount, the prepayment price shall be
100.000% of such amount together with interest accrued to the Closing Date.
F. The Owner Trustee shall obtain the funds necessary for the
Prepayment (i) by issuing and selling to PNM an Additional Note under the Lease
Indenture (the "Issuance and Sale") in the amount and on the terms specified in
the form of note included as part of Exhibit A hereto (the "1997 Refunding
Note") and (ii) from the payment by PNM of Supplemental Rent (pursuant to
Section 3(b)(ii) of the Facility Lease) to the Owner Trustee in the amount equal
to the prepayment premium (the prepayment price less principal being prepaid and
accrued interest thereon) to be paid in connection with the Prepayment. The
purchase price for the 1997 Refunding Note (the "Purchase Price") will equal the
principal amount thereof plus interest accrued thereon from July 15, 1997 to the
Closing Date.
G. On January 15, 1998, a sinking fund payment of $3,089,000
is due in respect of the Series B Bonds, $584,000 of which, but for the
Prepayment and the Issuance and Sale, would have been funded from scheduled
principal amortization in respect of the $28,900,000 portion of the Subject
Note. Such $584,000 together with accrued interest (but without premium) will
instead be paid from the proceeds of the Purchase Price held by Chase as
Collateral Trust Trustee. The Collateral Trust Trustee, on behalf of Funding
Corporation, gave notice of the sinking fund redemption on December 15, 1997.
H. Funding Corporation shall obtain the funds necessary for
the Redemption from (a) the proceeds of the prepayment price of the further
portion of the Subject Note being prepaid and (b) amounts paid by PNM pursuant
to Section 4(c) of this Agreement.
I. The Owner Trustee, as directed and authorized by the Owner
Participant, wishes to cause the Issuance and Sale in order to effect the
Prepayment and to provide a portion of the funds needed to effect the
Redemption.
J. Section 3.5(1)(i) of the Lease Indenture provides that
Additional Notes may be issued for the purpose of refunding any previously
issued series of Notes, in whole or in part. Section 10.1(viii) of the Lease
Indenture provides that the Indenture Trustee and the Owner Trustee may, without
the consent of the Holders of Notes Outstanding, execute a supplemental
indenture to evidence the issuance of and to provide the terms of Additional
Notes to be issued under the Lease Indenture in accordance with the terms
thereof. Subject to the conditions set forth herein, the Owner Trustee and
Indenture Trustee intend to execute a 1997 Supplemental Indenture to the Lease
Indenture, dated as of December 23, 1997 (the "1997 Note Supplement"), providing
for the issuance under the Lease Indenture of the 1997 Refunding Note as
contemplated in the 1997 Note Supplement. The form of the 1997 Note Supplement
is attached as Exhibit A hereto.
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K. Pursuant to the Consent described in Schedule I hereto (the
"Consent"), the Owner Participant has consented to the acquisition by PNM of
Notes, and by executing this Agreement is willing to consent to the acquisition
by PNM of the 1997 Refunding Note on the terms and conditions set forth herein.
L. Since the 1997 Refunding Note taken together with the PNM
Note and the unpaid portion of the Subject Note (as reflected in the Allonge
hereinbelow described) exactly corresponds (as to interest rate, maturity and
principal amortization) to the Subject Note without giving effect to the
Prepayment (as herein defined) and the Prepayment (as defined in the 1996
Refunding Agreement), PNM and the Owner Participant have agreed that no
adjustments pursuant to Section 3(e) of the Lease will be necessary in
connection with the Prepayment and/or the issuance of the 1997 Refunding Note.
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
(a) For purposes hereof, capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to such terms set
forth in Appendix A to the Participation Agreement or in the Collateral Trust
Indenture, as the case may be.
(b) "Closing Date" means December 30, 1997.
SECTION 2. Agreements of Funding Corporation.
(a) On the Closing Date, Funding Corporation shall issue a
notice of redemption to the Collateral Trust Trustee in the form of Exhibit B
hereto (the "Notice of Redemption") with respect to the optional redemption by
it of $28,316,000 of Series B Bonds (collectively, the "Subject Bonds"). The
redemption date specified in the Notice of Redemption is January 20, 1998 (the
"Redemption Date").
(b) Promptly following the Redemption, Funding Corporation
will deliver to the Collateral Trust Trustee a Company Request under the
Collateral Trust Indenture to effect adjustments to the Sinking Fund schedules
applicable to the Bonds not redeemed as part of the Redemption.
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SECTION 3. Agreements of Owner Trustee.
(a) On the Closing Date, the Owner Trustee will:
(i) execute and deliver the 1997 Note Supplement;
(ii) execute and deliver the 1997 Refunding Note;
(iii) execute and deliver a further allonge (the "Allonge") to
the Subject Note in the form of Exhibit C hereto;
(iv) as required by Section 3.5(4)(b) and (d) of the Lease
Indenture, execute and deliver a certificate, request and authorization
in the form of Exhibit D hereto (the "Owner Trustee Instrument");
(v) cause to be delivered an opinion of its counsel in the
form of Exhibit E.1 hereto; and
(vi) make (solely from the proceeds of the Purchase Price and
the payment of Supplemental Rent pursuant to Section 4(c) hereof) the
Prepayment as follows: principal of $28,900,000, premium of
$1,609,481.44 (calculated at 105.684% on principal of $28,316,000) and
accrued interest through the Closing Date of $1,344,452.08 (aggregating
$31,853,933.52).
(b) On the Closing Date, the relevant provisions of this
Refunding Agreement shall constitute notice to the Indenture Trustee of the
Prepayment. The principal portion of the Purchase Price (the "Amount to be
Prepaid" set forth in Schedule I hereto) shall be applied to prepay on the
Closing Date the remaining installments of principal of the Subject Note as
follows: the "principal amount payable" on each "payment date" specified on
Schedule 1 to the Subject Note shall be prepaid by an amount equal to the
"principal amount payable" for such date set forth in Schedule 1 to the 1997
Refunding Note. Annexed as Schedule 1 to the Allonge is the replacement schedule
to the Subject Note which reflects the application of the proceeds of Prepayment
to the remaining installments of the Subject Note. For each date, the sum of (i)
the "principal amount payable" set forth on Schedule 1 to the Allonge for such
date and (ii) the "principal amount payable" set forth on Schedule 1 to the 1997
Refunding Note for such date equals the "principal amount payable" for such date
set forth on Schedule 1 to the Subject Note (without giving effect to the
Prepayment or the Allonge).
SECTION 4. Agreements of PNM.
(a) On the Closing Date, PNM shall acquire the 1997 Refunding
Note for an amount equal to the Purchase Price. The Purchase Price shall be paid
by wire transfer of immediately available funds to an account at Chase to be
designated by Chase on the day immediately preceding the Closing Date (the
"Account").
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(b) On the Closing Date, PNM shall pay an amount equal to the
amount specified in item 7 on Schedule I, such payment to be made for the
benefit of the Owner Trustee as Supplemental Rent under Section 3(b)(ii) of the
Facility Lease. Such payment shall be made by wire transfer of immediately
available funds to the Account.
(c) On the Closing Date, PNM shall pay to the Account for the
benefit of Funding Corporation $162,140.61, of which $122,222.92 is accrued
interest from December 31, 1997 through January 15, 1998 on $28,900,000
principal amount of Subject Bonds and $39,917.69 is accrued interest from
January 16, 1998 through the Redemption Date on $28,316,000 principal amount of
Subject Bonds which will be sufficient to pay any remaining moneys due on the
Subject Bonds.
(d) PNM agrees that, upon acquisition by PNM of the 1997
Refunding Note, PNM will not thereafter sell, assign, transfer or otherwise
dispose of any portion of the 1997 Refunding Note or any interest therein (i)
except in a transaction which is exempt from the registration requirements of
the Securities Act of 1933, as amended, (ii) except in a transaction which would
not involve either a prohibited transaction (other than an exempt prohibited
transaction) or an impermissible delegation of authority within the meaning of
the Employee Retirement Income Security Act of 1974, as amended, related
provisions of the Internal Revenue Code of 1986, as amended, and implementing
regulations (collectively, "ERISA") and (iii) without the consent of the Owner
Participant, to any employee benefit plan subject to ERISA.
(e) PNM acknowledges and agrees that the acquisition by it of
the 1997 Refunding Note shall constitute the purchase and acquisition by PNM of
a Note for all purposes of the Consent and reaffirms, for the benefit of the
Owner Participant, each of its covenants and agreements contained therein.
(f) Without the prior written consent of the Owner
Participant, PNM agrees that neither it nor any of its Affiliates, as holder of
the 1997 Refunding Note, will give or participate in any request, demand,
authorization, direction, notice, consent or waiver or other action available to
a holder of the 1997 Refunding Note.
(g) PNM will continue to satisfy its obligations to pay Rent
under the Facility Lease by making cash payments at the time such Rent is due
and payable, and in no case shall PNM tender, or be permitted to tender, any
portion of the 1997 Refunding Note in satisfaction of its obligations to pay
Rent.
(h) PNM represents and warrants that, on, and as of, the
Closing Date, (i) PNM has obtained (A) the consent of each Equity Investor to
the extent that such consent is required to purchase the 1997 Refunding Note and
(B) each other consent that is required under any Participation Agreement and
(ii) PNM is legally entitled to purchase and hold the 1997 Refunding Note.
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SECTION 5. Agreements of the Owner Participant.
(a) The Owner Participant agrees that the acquisition by PNM
of the 1997 Refunding Note is in conformity with the Consent and will not,
therefore, result in a breach by PNM of the Participation Agreement (after
giving effect to the amendment to the Participation Agreement set forth in
Section 10 of the 1996 Refunding Agreement).
(b) The Owner Participant will make a good faith effort to
cooperate with the other parties hereto in connection with the Prepayment, the
Redemption and the Issuance and Sale, SUBJECT NEVERTHELESS, to the provisions of
the Transaction Documents, the Consent and this Agreement.
SECTION 6. Closing.
(a) On the Closing Date, subject to the satisfaction of the
conditions set forth in Section 6(b), the parties hereto shall perform their
respective obligations hereunder specified to be performed on or prior to the
Closing Date.
(b) The obligation of the parties hereto to participate in the
Prepayment, the Issuance and Sale and the Redemption shall be subject to the
fulfillment on or before the Closing Date of the following conditions precedent
(each instrument, document, certificate or opinion to be in form and substance
satisfactory to each party hereto):
(i) The Owner Trustee shall have delivered to the Indenture
Trustee the Owner Trustee Instrument with the authorization and
direction subscribed thereon duly executed by the Owner Participant.
(ii) (A) The Owner Trustee and the Indenture Trustee shall
have entered into the 1997 Supplement, (B) the Owner Trustee shall have
executed and delivered (I) the Allonge and (II) the 1997 Refunding
Note, (C) the Indenture Trustee shall have authenticated the 1997
Refunding Note and delivered the same to PNM, (D) the Funding
Corporation and the Collateral Trust Trustee shall have accepted and
countersigned the Allonge and caused the same to be attached to the
Subject Note and (E) the Collateral Trust Trustee shall have sufficient
funds in the Account to pay any amounts due on the Subject Bonds
through January 15, 1998 and from January 16, 1998 through the
Redemption Date.
(iii) No Default or Event of Default or Indenture Event of
Default shall have occurred and be continuing.
(iv) All conditions precedent to the acquisition by PNM of the
1997 Refunding Note specified in the Consent shall have been fulfilled.
(v) The parties shall have received a favorable opinion of
counsel from Keleher & McLeod, P.A., New Mexico counsel for PNM, dated
the Closing Date and addressing such matters relating to the
transactions in connection with the Redemption, the Issuance and Sale
and the Prepayment as any party may reasonably have requested.
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(vi) The parties shall have received a favorable opinion of
counsel from Winthrop, Stimson, Putnam & Roberts, special counsel for
PNM and counsel for the Funding Corporation, dated the Closing Date and
addressing such matters relating to the transactions in connection with
the Redemption, the Issuance and Sale and the Prepayment as any party
may reasonably have requested.
(vii) The parties shall have received favorable opinions of
counsel from (1) counsel to the Owner Trustee dated the Closing Date
and in the form of Exhibit E.1 hereto, and (2) Winthrop, Stimson,
Putnam & Roberts dated the Closing Date and in the form of Exhibit E.2
hereto.
(viii) The parties shall have received from the Owner
Participant an acceptable opinion of counsel as to the due
authorization, execution and delivery of this Agreement by, and the
legal, valid and binding effect and enforceability of this Agreement
against, the Owner Participant.
(ix) The Collateral Trust Trustee shall have executed and
delivered a Consent and Directive (delivered in its capacity as
assignee and pledge of Funding Corporation and as holder of all Notes)
pursuant to which, among other things, it consents to Section 10
hereof.
SECTION 7. Expenses. PNM agrees that the fees, expenses,
disbursements and costs of the other parties hereto and the Collateral Trust
Trustee reasonably incurred in connection with the Prepayment, the Issuance and
Sale and the Redemption are payable by PNM, as Supplemental Rent, as
contemplated by Section 14(b) of the Participation Agreement. For purposes of
such Section 14(b), PNM acknowledges and agrees that this Agreement and the
transactions contemplated hereby and by the Consent are within the intent and
scope of Section 14(b)(ii) of the Participation Agreement.
SECTION 8. Request and Consent.
(a) In accordance with Section 2.01 of the Trust Agreement and
Section 3.5(2) of the Lease Indenture, the Owner Participant hereby requests,
authorizes and directs the Owner Trustee and the Indenture Trustee (as
applicable) to execute, deliver and perform this Agreement, the 1997 Note
Supplement, the 1997 Refunding Note, the Allonge and the Owner Trustee
Instrument.
(b) In accordance with Article X of the Lease Indenture, the
Owner Trustee hereby requests that the Indenture Trustee execute and deliver the
1997 Note Supplement and consents to such execution and delivery.
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SECTION 9. No Adjustment, etc. Anything in the Facility Lease
or the other Transaction Documents to the contrary not withstanding, Basic Rent
and the schedules to the Facility Lease will not be subject to adjustment to
reflect either (i) the inclusion in income as to the Owner Participant of
transaction expenses paid by PNM in connection with the Prepayment, the Issuance
and Sale and the Redemption or (ii) the current deduction by the Owner
Participant (in consequence of the Prepayment) of any portion of
previously-incurred transaction expenses presently being amortized on a
straight-line basis during the Basic Lease Term. PNM agrees that any net
increase in the Owner Participant's Net Economic Return in consequence of the
foregoing may be retained by the Owner Participant in connection with any future
adjustment under the Facility Lease undertaken with the intent of preserving the
Owner Participant's Net Economic Return.
SECTION 10. Amendment to Subject Note
Anything in the Subject Note to the contrary notwithstanding,
the prepayment price for the portion of the Subject Note which is the subject of
the Prepayment shall be 105.684% of the principal amount being prepaid, together
with interest accrued to the date fixed for the Prepayment, except that the
prepayment price for $584,000 of the Prepayment shall be 100.000% of such amount
together with interest accrued thereon to the date fixed for the Prepayment.
SECTION 11. Additional Provisions.
(a) The following provisions of the Participation Agreement
are incorporated herein by this reference, mutatis mutandis, and shall be
applicable to and enforceable by the relevant party or parties hereto: Sections
16, 17(b) and 18 (except that the addresses of the parties for receipt of
notices, etc., shall be as set forth on Schedule II hereto) and Sections 19(a)
through Section 19(h).
(b) Notwithstanding Section 19(g) of the Participation
Agreement (as incorporated by Section 11(a) hereof), the Consent shall survive
the execution, delivery and performance of this Agreement.
(c) The recitals contained herein shall be taken as statements
of PNM, and the other parties assume no responsibility for the correctness of
the same.
(d) Chase and State Street are entering into this agreement
solely in their respective trust capacities and not in their respective
individual capacities. Anything herein to the contrary notwithstanding, all and
each of the agreements herein made on the part of each such trustee are made and
intended not as personal agreements but are made and intended solely for the
purpose of binding the trust estate in respect of which Chase or State Street,
as the case may be, is trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this
Refunding Agreement No. 8A to be duly executed by their respective officers
thereunto duly authorized.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By:____________________________
Name:
Title:
MFS LEASING CORP.
By:_____________________________
Name:
Title:
FIRST PV FUNDING CORPORATION
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:______________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee as aforesaid
By:_______________________________
Name:
Title:
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SCHEDULE I to
Refunding Agreement No. 8A
1. Name of Owner Participant: MFS Leasing Corp. (successor by
assignment to Beneficial Leasing
Group, Inc.), a Delaware corporation
2. Note to be Prepaid: 10.15% Non-Recourse Promissory Note,
Fixed Rate Series (Due January 15,
2016), dated November 25, 1986
3. Amount to be Prepaid: $28,900,000
4. Prepayment Premium: $1,609,481.44
5. 1997 Refunding Note:
(i) Interest Rate: 10.15%
(ii) Principal Amount: $28,900,000
(iii) Stated Maturity of Principal: January 15, 2016
(iv) Interest payable from: July 15, 1997
(v) Interest Payment Dates: January 15 and July 15 in each year,
commencing January 15, 1998
(vi) Principal Amortization: As specified in Exhibit A to the
1997 Note Supplement
(vii) Optional Prepayment: As specified in Exhibit A to the
1997 Note Supplement
(viii) Other terms: As specified in Exhibit A to the
1997 Note Supplement
6. Purchase Price for Refunding Note: $28,900,000 plus accrued interest
from July 15, 1997
7. Supplemental Rent Payment: $1,609,481.44
8. Consent: Consent dated as of April 22, 1996,
executed by MFS Leasing Corp.
SCHEDULE II to
Refunding Agreement No. 8A
ADDRESSES
1. Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Attention of Secretary
2. MFS Leasing Corp.
919 North Market Street, Suite 200
Wilmington, Delaware 19808
Attention of President
3. State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention of Corporate Trust Department
4. The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention of Corporate Trustee Administration
5. First PV Funding Corporation
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Attention of President
EXHIBIT B to
Refunding Agreement No. 8A
December 30, 1997
THE CHASE MANHATTAN BANK, as trustee
under the Collateral
Trust Indenture dated as
of December 16, 1985
with First PV Funding
Corporation and Public
Service Company of New
Mexico
450 West 33rd Street
New York, New York 10001
Attention of: Ms. Patricia Morabito
Vice President
Re: Optional Redemption of Certain Bonds
Gentlemen:
The undersigned hereby notifies you that it is exercising its
option to effect a redemption of certain securities outstanding under the
above-referenced Collateral Trust Indenture (as heretofore amended and
supplemented, the "Indenture"). Capitalized terms used herein without definition
have the respective meanings specified in the Indenture.
On January 20, 1998 (the "Redemption Date"), the undersigned
will redeem $28,316,000 principal amount of the undersigned's 10.15% Lease
Obligation Bonds Series 1986B with a Stated Maturity of principal of January 15,
2016 (the "2016 Bonds").
This letter constitutes a Company Order with respect to the
foregoing matters.
Accompanying this notice is a form of notice of redemption for
the 2016 Bonds which are being redeemed.
FIRST PV FUNDING CORPORATION
By: _____________________________
Mark A. Ferrucci
President
By: _____________________________
A.M. Horne
Secretary
cc: Public Service Company
of New Mexico
*CUSIP Number: 335877AF3
NOTICE OF REDEMPTION
to the Holders of
First PV Funding Corporation
Lease Obligation Bonds
Series 1986B 10.15% due January 15, 2016
NOTICE IS HEREBY GIVEN, pursuant to the provisions of Section 6.03 of the
Collateral Trust Indenture dated as of December 16, 1985 (the "Collateral Trust
Indenture"), among First PV Funding Corporation (the "Company"), Public Service
Company of New Mexico, and The Chase Manhattan Bank (formerly known as "Chemical
Bank"), as Trustee (the "Trustee"), as amended and supplemented by the Series
1986B Bond Supplemental Indenture dated as of November 18, 1986 (the
"Supplemental Indenture"), that said Trustee has received a notice from the
Company with respect to the optional redemption of $28,316,000 principal amount
of the above-described Bonds ("the Bonds") on the redemption date of January 20,
1998 ("Redemption Date") at a redemption price of $1,058.25 per $1,000 of
principal amount (inclusive of premium and accrued interest to the Redemption
Date) (the "Redemption Price").
The numbers and principal amounts of the Bonds to be redeemed
in whole or in part are as follows:
Bond No. Principal Amount
-------- ----------------
R 10168 $17,041,000.00
R 10173 698,000.00
R 10174 9,084,000.00
R 10176 2,000.00
R 10177 1,000.00
R 10186 22,000.00
R 10188 23,000.00
R 10195 1,086,000.00
R 10205 302,000.00
R 10223 9,000.00
R 10227 37,000.00
R 10228 5,000.00
R 10233 6,000.00
On the Redemption Date the Bonds or portions thereof specified
above will be redeemed at the Redemption Price. Each holder of a Bond, a portion
of which has been selected for redemption, shall upon surrender thereof receive
a new Bond, of the same series and Stated Maturity of principal, for the portion
thereof not called for redemption. In order to receive payment of the Redemption
Price, such Bonds or portions thereof must be surrendered for payment on or
after the Redemption Date to The Chase Manhattan Bank as follows:
By Mail: By Hand: By Courier:
- -------- -------- -----------
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
c/o Texas Commerce Bank Corporate Trust Securities c/o Texas Commerce Bank
Corporate Trust Services Window Corporate Trust Services
P.O. Box 219052 55 Water Street-Second Floor 1201 Main Street
Dallas, Texas 75221-9052 Room 234-North Building 18th Floor
New York, New York 10041 Dallas, Texas 75202
On the Redemption Date, the Redemption Price will become due
and payable upon each Bond to be redeemed and from and after the Redemption Date
interest on the Bonds to be redeemed shall cease to accrue.
First PV Funding Corporation
By: The Chase Manhattan Bank,
as Trustee
Dated: December 31, 1997
----------
Under the Interest and Dividend Tax Compliance Act of 1983, we may be required
to withhold 31% of any gross payments made within the United States to certain
holders who fail to provide us with, and certify under penalties of perjury, a
correct taxpayer identifying number (employer identification number or social
security number, as appropriate) or an exemption certificate on or before the
date the securities are presented for payment. Please therefore provide the
appropriate certification when presenting your securities for payment.
*This CUSIP number has been assigned to this issue by an organization not
affiliated with the Trustee and is included solely for the convenience of the
Bondholders. Neither First PV Funding Corporation, Public Service Company of New
Mexico, nor the Trustee shall be responsible for the selection or use of this
CUSIP number, nor is any representation made as to its correctness on the Bonds
or as indicated in any redemption notice.
EXHIBIT C to
Refunding Agreement No. 8A
ALLONGE
to
$34,101,000 NON-RECOURSE PROMISSORY NOTE, FIXED RATE SERIES
(DUE JANUARY 15, 2016) DATED NOVEMBER 25, 1986 OF THE FIRST
NATIONAL BANK OF BOSTON, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY
AS OWNER TRUSTEE,
On December 30, 1997, the undersigned obligor in respect of
the above-captioned promissory note (the "Note"), prepaid $28,900,000 of the
unpaid principal amount of the Note, leaving an unpaid principal amount of
$3,411,000. Schedule 1 to the Note (as added by the Allonge thereto dated
September 27, 1996) is hereby superseded and replaced by Schedule 1 to this
Allonge. The undersigned has succeeded to The First National Bank of Boston as
owner trustee/obligor in respect of the Note.
Date: December 30, 1997 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:_________________________
Name:
Title:
The undersigned acknowledge and accept the foregoing allonge
and agree that it shall be affixed to the Note.
Date: December 30, 1997
THE CHASE MANHATTAN BANK, FIRST PV FUNDING CORPORATION
as Trustee
By:___________________________ By:______________________________
Name: Name:
Title: Title:
SCHEDULE 1
to Allonge
SCHEDULE 1 (Replacement)
TO THE FIXED RATE NOTE
(DUE JANUARY 15, 2016)
Schedule of Principal Amortization
$3,411,000 Principal Amount
Payment Principal Principal
Date Amount Payable Amount Paid
- --------- -------------- -----------
January 15, 1998 $ 66,000
July 15, 1998 69,000
January 15, 1999 61,000
July 15, 1999 47,000
January 15, 2000 51,000
July 15, 2000 54,000
January 15, 2001 55,000
July 15, 2001 58,000
January 15, 2002 59,000
July 15, 2002 62,000
January 15, 2003 62,000
July 15, 2003 66,000
January 15, 2004 67,000
July 15, 2004 71,000
January 14, 2005 70,000
July 15, 2005 76,000
January 15, 2006 76,000
July 15, 2006 80,000
January 15, 2007 81,000
July 15, 2007 86,000
January 15, 2008 86,000
July 15, 2008 92,000
January 15, 2009 92,000
July 15, 2009 98,000
January 15, 2010 98,000
July 15, 2010 104,000
January 15, 2011 105,000
July 15, 2011 110,000
January 15, 2012 111,000
July 15, 2012 120,000
January 15, 2013 119,000
July 15, 2013 127,000
January 15, 2014 127,000
Payment Principal Principal
Date Amount Payable Amount Paid
- --------- -------------- -----------
July 15, 2014 124,000
January 15, 2015 134,000
July 15, 2015 146,000
January 15, 2016 301,000
----------
Principal Amount $3,411,000
==========
EXHIBIT D to
Refunding Agreement No. 8A
CERTIFICATE, REQUEST AND AUTHORIZATION
Reference is made to (i) the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of August 12, 1986 (as
heretofore supplemented, the "Indenture") to which the undersigned (the "Owner
Trustee") and THE CHASE MANHATTAN BANK (formerly known as "Chemical Bank"), in
its capacity as Indenture Trustee (the "Indenture Trustee"), are party, and (ii)
the 1997 Supplemental Indenture dated as of December 23, 1997 (the "1997 Note
Supplement") between the Owner Trustee and the Indenture Trustee. Capitalized
terms used herein without definition shall have the respective meanings
specified in the Indenture (including Appendix A thereto).
This Certificate, Request and Authorization (this
"Instrument") is being made and given by the Owner Trustee pursuant to Sections
3.5(4)(b) and (d) of the Indenture in connection with (i) the execution by the
Indenture Trustee of the 1997 Note Supplement and (ii) the issuance,
authentication and delivery of the 1997 Refunding Note (as defined in the 1997
Supplement). This Instrument is being executed and delivered by the Owner
Trustee by one of its Responsible Officers (the "Executing Officer").
1. The Executing Officer CERTIFIES that he is a Responsible
Officer of the Owner Trustee and that he is authorized to execute and deliver
this Instrument on behalf of the Owner Trustee.
2. The Executing Officer further CERTIFIES that
(i) to the best knowledge of such Executing Officer, no
Default or Event of Default or Indenture Event of Default has occurred
and is continuing;
(ii) the conditions in respect of the issuance of the 1997
Refunding Note contained in Section 3.5 of the Indenture have been
satisfied;
(iii) costs and expenses relating to issuance and sale of the
1997 Refunding Note are in excess of $10,000; and
(iv) payments pursuant to the Facility Lease of Basic Rent,
Casualty Value, Special Casualty Value and Termination Value and of
amounts in respect of the exercise of the Cure Option or the occurrence
of the Special Purchase Event or Special Purchase Option, as the case
may be, are sufficient to pay all the Outstanding Notes after taking
into account the issuance of the 1997 Refunding Note and the related
partial prepayment of the Fixed Rate Note due January 15, 2016.
3. By its authorization and direction set forth below, the
Owner Participant (i) has agreed that this Instrument, taken together with the
1997 Note Supplement, constitute compliance with Sections 3.5(1) and (2) of the
Lease Indenture by the Owner Trustee, and (ii) waives the benefit of any time
periods specified in Section 3.5(2) of the Lease Indenture.
4. Upon receipt by the Indenture Trustee, for the account of
the Owner Trustee, of an amount equal to the sum of (i) the principal amount of
the 1997 Refunding Note and (ii) interest accrued thereon from July 15, 1997
through December 30, 1997 (aggregating, $1,344,452.08), the Indenture Trustee is
hereby REQUESTED and AUTHORIZED to authenticate the 1997 Refunding Note and
deliver the same to Public Service Company of New Mexico.
IN WITNESS WHEREOF, the undersigned Responsible Officer of the
Owner Trustee has executed this Instrument on behalf of the Owner Trustee on the
date below written.
Date: December 30, 1997 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 the
below named owner participant,
By:_______________________________
Name:
Title:
AUTHORIZATION AND DIRECTION
The undersigned, the sole beneficiary of the above-mentioned
Trust Agreement, hereby AUTHORIZES and DIRECTS the Owner Trustee to execute and
deliver the instrument on which is subscribed this authorization and direction.
Date: December 30, 1997 MFS LEASING CORP.
By:_________________________
Name:
Title:
EXHIBIT E.1 to
Refunding Agreement No. 8A
[Form of opinion of counsel to the Owner Trustee]
December 30, 1997
MFS Leasing Corp.
919 North Market Street Suite 200
Wilmington, Delaware 19808
State Street Bank and Trust Company, as Owner Trustee
Two International Place
Boston, Massachusetts 02110
The Chase Manhattan Bank, as Indenture Trustee and
as Collateral Trust Trustee
450 West 33rd Street
New York, New York 10001
First PV Funding Corporation
1209 Orange Street
Wilmington, Delaware 19801
Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Re: Refunding Agreement No. 8A dated as of December 23, 1997.
Ladies and Gentlemen:
We have acted as counsel to State Street Bank and Trust
Company, a Massachusetts trust company ("State Street") in connection with the
Refunding Agreement No. 8A dated as of December 23, 1997 (the "Refunding
Agreement") by and among State Street, not in its individual capacity but solely
as owner trustee (in such capacity, the "Owner Trustee") under a Trust Agreement
dated as of August 12, 1986 between MFS Leasing Corp. (successor by assignment
to Beneficial Leasing Group, Inc.), as Owner Participant (the "Owner
Participant") and State Street as successor as Owner Trustee to The First
National Bank of Boston, the owner trustee originally designated therein (the
"Trust Agreement"), Public Service Company of New Mexico ("PNM"), First PV
Funding Corporation ("Funding Corporation"), The Chase Manhattan Bank (formerly
known as "Chemical Bank"), not in its individual capacity but solely as lease
indenture trustee (the "Indenture Trustee") in connection with the 1997 Note
Supplement and the 1997 Refunding Note (as each such term is defined in the
Refunding Agreement).
All capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned to such terms in (or by reference
in) the Refunding Agreement.
In connection with the opinions expressed below, we have
examined the Refunding Agreement, the 1997 Note Supplement, the 1997 Refunding
Note, the Allonge and the Owner Trustee Instrument (sometimes collectively
referred to herein as the "Refunding Documents"), and the Trust Agreement, and
we have examined such other agreements, documents, certificates and other
statements as we have deemed relevant and necessary as a basis for such
opinions. In such examination, we have assumed the genuineness of all
signatures, the adequate power and due authorization, execution and delivery of
all signatories (other than the Owner Trustee), the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, and the
conformity with the originals of all documents submitted to us as copies. We
have assumed that each of the Refunding Documents is the legal, valid and
binding obligation of each of the parties thereto (except that we do not make
that assumption as to the Owner Trustee), duly enforceable against each such
entity in accordance with its terms.
As to factual matters, we have relied exclusively upon the
representations and warranties contained in the Refunding Documents to which
this opinion relates, and those contained in any other documents we have
examined for purposes of this opinion. We have conducted no independent
investigation of any factual matters germane to this opinion, and we have
assumed without independent verification the truth, accuracy and completeness of
all information, representations and warranties in all documents or materials we
have examined.
We render no opinion herein as to compliance with or
satisfaction of the conditions precedent to issuance or authentication of the
1997 Refunding Notes under the Indenture (and we understand that you will be
relying upon a separate opinion of Winthrop, Stimson, Putnam & Roberts of even
date in that regard).
Each of the opinions expressed herein is given as of the date
hereof, and we undertake no responsibility to advise you of any matter, whether
of a factual or legal nature, that may occur or come to our attention after the
date hereof.
Upon the basis of and subject to the foregoing, and the
qualifications or assumptions appearing below, we are of the opinion that:
1. The Owner Trustee is a Massachusetts trust company, duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts.
2. The Owner Trustee has corporate power and authority to
enter into each of the Refunding Documents.
3. Each of the Refunding Documents has been duly authorized by
all necessary corporate action on the part of the Owner Trustee, and has been
duly executed and delivered by a duly authorized officer of the Owner Trustee.
4. Each of the Refunding Documents constitutes the legal,
valid and binding obligation of the Owner Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, receivership, moratorium and other similar laws affecting creditors'
rights generally and subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and
judicial discretion in granting equitable remedy.
We are members of the Bar of The Commonwealth of Massachusetts
only, and the opinions set forth above are limited to the laws of said
Commonwealth in effect as of the date hereof and, to the extent stated
hereinabove, the federal laws of the United States of America in effect as of
the date hereof.
Nothing herein shall constitute an opinion as to choice of
laws, and we have assumed the applicability of Massachusetts law to the matters
addressed herein.
Except as otherwise expressly provided herein, this opinion is
delivered to you solely for your benefit in connection with the execution and
delivery of the Refunding Documents and the closing of the transactions
contemplated by the Refunding Agreement, and it may not be used, circulated or
quoted or otherwise referred to for any other purpose, or to or by any other
person, without our express written consent.
Very truly yours,
PEABODY & ARNOLD
EXHIBIT E.2 to
Refunding Agreement No. 8A
[Form of Opinion of Winthrop, Stimson, Putnam & Roberts]
December 30, 1997
The Chase Manhattan Bank
as Indenture Trustee
450 West 33rd Street
New York, New York 10001
Ladies and Gentlemen:
We have acted as counsel for First PV Funding Corporation, a
Delaware corporation ("Funding Corporation"), and special counsel for Public
Service Company of New Mexico, a New Mexico corporation ("PNM"), in connection
with the transactions contemplated by Refunding Agreement No. 8A dated as of
December 23, 1997 (the "Refunding Agreement") 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 the
Trust Agreement dated as of August 12, 1986 with MFS Leasing Corp. (successor by
assignment to Beneficial Leasing Group, Inc.), as Owner Participant, PNM,
Funding Corporation and The Chase Manhattan Bank (formerly known as "Chemical
Bank"), a New York banking corporation, not in its individual capacity, but
solely as lease indenture trustee under the Lease Indenture referred to below
(the "Indenture Trustee"), and have examined the Trust Indenture, Mortgage,
Security Agreement and Assignment of Rents dated as of August 12, 1986 (as
heretofore supplemented and as to be further supplemented by the 1997 Note
Supplement (as defined in the Instrument, as defined below), the "Lease
Indenture") between the Indenture Trustee and the Owner Trustee and the Owner
Trustee's Certificate, Request and Authorization dated the date hereof (the
"Instrument") to you as Indenture Trustee pursuant to Sections 3.5(4)(b) and (d)
of the Lease Indenture relating to the issuance, authentication and delivery of
the 1997 Refunding Note (as defined in the Instrument) and the execution and
delivery of the 1997 Note Supplement. Capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to such terms set
forth in Appendix A to the Lease Indenture.
In this connection, we have also reviewed, and have relied as
to matters of fact material to this opinion upon, the Refunding Agreement and
the Instrument, and we have examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in order to
enable us to render this opinion. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
Based on the foregoing, we are of the opinion that the
conditions precedent required under the Lease Indenture for the authentication
and delivery of the 1997 Refunding Note and the execution and delivery of the
1997 Note Supplement have been complied with.
We have read the conditions of the Lease Indenture, and the
definitions therein relating thereto, relating to the authentication and
delivery of the 1997 Refunding Note and the execution and delivery of the 1997
Note Supplement. This opinion is also based on knowledge acquired in the course
of acting as counsel for Funding Corporation and insofar as it relates to
factual matters, on examination of representations by responsible officers and
employees of the Owner Trustee having knowledge of the relevant facts.
In our opinion, we have made such examination or investigation
as is necessary to enable us to express an informed opinion as to whether the
conditions relating to the authentication and delivery of the 1997 Refunding
Note and the execution and delivery of the 1997 Note Supplement have been
complied with; and in our opinion such conditions have been complied with.
This opinion is limited to the laws of the State of New York
and is furnished by us, as special counsel to PNM and counsel to Funding
Corporation, to you, as Indenture Trustee, solely for your use in connection
with the authentication and delivery of the 1997 Refunding Note and the
execution and delivery of the 1997 Note Supplement and may not be relied upon by
any other person or for any other purpose without our express written consent.
Very truly yours,