Exhibit 4(a)(32)
THIRTY-FIRST SUPPLEMENTAL INDENTURE
Dated as of May 1, 1996
TUCSON ELECTRIC POWER COMPANY
to
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
AS TRUSTEE
Creating a New Issue of First Mortgage Bonds,
Pollution Control Series I
Supplemental to Indenture dated as of April 1, 1941, of
The Tucson Gas, Electric Light and Power Company
(predecessor to Tucson Electric Power Company),
to The Chase National Bank of the City
of New York, as Trustee (predecessor to The
Chase Manhattan Bank (National Association))
THIRTY-FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 1996 made by and
between TUCSON ELECTRIC POWER COMPANY, a corporation organized and existing
under the laws of the State of Arizona (the "Company"), having its principal
place of business at 220 West Sixth Street, in the City of Tucson, Arizona,
party of the first part, and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a
national banking association existing under the laws of the United States of
America (the "Trustee"), having its principal corporate trust office at 4 Chase
MetroTech Center, Brooklyn, N.Y., as Trustee, party of the second part.
WHEREAS, The Tucson Gas, Electric Light and Power Company, predecessor of
the Company and herein called the "Predecessor Company", heretofore executed and
delivered to The Chase National Bank of the City of New York, as trustee (the
"Predecessor Trustee"), its Indenture, dated as of April 1, 1941 (the "Original
Indenture") to secure its First Mortgage Bonds, issuable in series; and
WHEREAS, on March 31, 1955 The Chase National Bank of the City of New York
was merged into President and Directors of the Manhattan Company under the name
of The Chase Manhattan Bank, and The Chase Manhattan Bank became the successor
trustee under the Original Indenture, as supplemented and amended; and
WHEREAS, on February 20, 1964 the Predecessor Company was merged with and
into the Company and the Company assumed and agreed to pay the principal of and
premium, if any, and interest on all bonds then issued and outstanding under the
Indenture, also agreeing to perform and fulfill all the covenants and conditions
of the Indenture binding upon the Predecessor Company, and also agreeing that
the Company succeed and be substituted for the Predecessor Company under the
Indenture; and
WHEREAS, The Chase Manhattan Bank is now The Chase Manhattan Bank (National
Association), and the continuity of the business of The Chase Manhattan Bank
including its business of acting as corporate trustee, and its corporate
existence, have not been affected, so that The Chase Manhattan Bank (National
Association) is vested with all the trusts, powers, discretions, immunities,
privileges and all other matters as were vested in the Predecessor Trustee under
the Indenture, with like effect as if originally named as trustee therein; and
WHEREAS, the Company (or the Predecessor Company) has heretofore executed
and delivered to the Trustee (or the Predecessor Trustee) the Original Indenture
and indentures supplemental thereto, and has issued the series of bonds, set
forth below:
{PRIVATE } Indenture or Date Series of Bonds Principal Principal
Supplemental Amount Amount
Indenture Issued Outstanding
Original Apr. 1, 1941 31/2% Series due 1966 $ 3,500,000 None
1 First Oct. 1, 1946 None None None
Second Oct. 1, 1947 31/8% Series due 1977 750,000 None
2, 4, 5 Third Apr. 1, 1949 31/8% Series due 1979 3,500,000 None
4, 5 Fourth Dec. 1, 1952 35/8% Series due 1982 5,000,000 None
4, 5 Fifth Jan. 1, 1955 31/4% Series due 1985 3,500,000 None
4, 5 Sixth Jan. 1, 1958 45/8% Series due 1988 7,500,000 None
1, 4, 5 Seventh Nov. 1, 1959 53/8% Series due 1989 7,500,000 None
1, 4, 5 Eighth Nov. 1, 1961 4.70% Series due 1991 10,000,000 None
6 Ninth Feb. 20, 1964 None None None
1, 4, 5 Tenth Feb. 1, 1965 4.55% Series due 1995 16,000,000 None
1, 4, 5 Eleventh Feb. 1, 1966 47/8% Series due 1996 10,000,000 None
2, 3, 4, 5 Twelfth Nov. 1, 1969 81/2% Series due 1999 15,000,000 15,000,000
2 Thirteenth Jan. 20, 1970 None None None
2, 4, 5 Fourteenth Sept. 1, 1971 81/8% Series due 2001 25,000,000 25,000,000
4, 5 Fifteenth Mar. 1, 1972 7.55% Series due 2002 25,000,000 25,000,000
4, 5 Sixteenth May 1, 1973 7.65% Series due 2003 40,000,000 40,000,000
1, 4, 5 Seventeenth Nov. 1, 1975 101/2% Series due 2005 50,000,000 None
1 Eighteenth Nov. 1, 1975 Poll. Control Series A 15,700,000 14,700,000
Nineteenth July 1, 1976 Poll. Control Series B 25,000,000 25,000,000
1, 2, 4 Twentieth Oct. 1, 1977 81/2% Series due 2009 60,000,000 60,000,000
Twenty-First Nov. 1, 1977 Poll. Control Series C 32,500,000 32,500,000
Twenty-Second Jan. 1, 1978 Poll. Control Series D 40,000,000 40,000,000
Twenty-Third July, 1980 Poll. Control Series E 16,300,000 None
Twenty-Fourth Oct. 1, 1980 Poll. Control Series F 100,000,000 None
2 Twenty-Fifth Apr. 1, 1981 Ind. Develop. Series A 126,000,000 None
1 Twenty-Sixth Apr. 1, 1981 Ind. Develop. Series B 163,000,000 None
1, 2 Twenty-Seventh Oct. 1, 1981 Poll. Control Series G 100,000,000 100,000,000
7 Twenty-Eight June 1, 1990 12.22% Series due 2000 96,000,000 78,750,000
Twenty-Ninth Dec. 1, 1992 Poll. Control Series H 3,561,644 3,561,644
Thirtieth Dec. 1, 1992 Ind. Develop. Series C 20,722,222.22 20,722,222.22
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1 Contains amendatory provisions relating to specific series.
2 Contains general amendatory provisions.
3 Contains general amendatory provisions required by the Trust Indenture
Act of 1939, as amended.
4 Incorporates covenant regarding replacement reserve (Section 9,
Article IV, of Original Indenture).
5 Contains (or incorporates) covenant regarding distributions on and
acquisitions of stock (Article V of Third Supplemental Indenture).
6 Contains assumption provisions.
7 Contains modified covenant regarding distributions on and acquisitions
of stock and negative covenants regarding liens, businesses other than
the Utility Business and Investments.
(the Original Indenture, the Supplemental Indentures listed above and this
Supplemental Indenture being herein collectively referred to as the
"Indenture"); and
WHEREAS, the Predecessor Company covenanted in and by the Original
Indenture to execute and deliver such further instruments and do such further
acts as may be necessary or proper to carry out more effectually the purposes of
the Original Indenture and to make subject to the lien thereof property acquired
after the execution and delivery of the Original Indenture; and
WHEREAS, the Company and the Coconino County, Arizona Pollution Control
Corporation, a political subdivision of the State of Arizona created and
existing under and by virtue of the Constitution and laws of the State of
Arizona (the "Pollution Control Corporation"), have heretofore entered into the
Loan Agreement, dated as of May 1, 1996 (the "Loan Agreement"), pursuant to
which the proceeds from the issuance and sale by the Pollution Control
Corporation of its Pollution Control Revenue Bonds, 1996 Series A (Tucson
Electric Power Company Project) in the aggregate principal amount of $16,700,000
(said bonds being hereinafter called the "Pollution Control Bonds"), in
accordance with the Indenture of Trust, dated as of May 1, 1996, between the
Pollution Control Corporation and First Trust of New York, National Association,
as trustee (the "Pollution Control Trustee") (said Indenture of Trust being
hereinafter called the "Pollution Control Indenture"), are to be loaned to the
Company from time to time for the purpose of financing a portion of the
Company's share of the costs of constructing certain pollution control
facilities as described in Exhibit A to the Loan Agreement; and
WHEREAS, pursuant to the Reimbursement Agreement, dated as of May 1, 1996,
between the Company and Canadian Imperial Bank of Commerce, New York Agency (the
"Bank"), the Bank has agreed to issue to the Pollution Control Trustee its
letter of credit in the stated amount of $18,347,124 (the "Stated Amount"), said
letter of credit being hereinafter called the "Letter of Credit"; and
WHEREAS, upon such delivery the Pollution Control Trustee will be required
under the Pollution Control Indenture to draw moneys on the Letter of Credit in
accordance with the provisions thereof to the extent necessary to make timely
payments of principal of and interest on the Pollution Control Bonds and to make
timely payments of the portions of the purchase price of Pollution Control Bonds
which have been delivered for purchase corresponding to the principal amount
thereof and to the interest accrued thereon, $16,700,000 of the Stated Amount of
the Letter of Credit to be available for the payment of principal, or the
portion of purchase price corresponding to principal, of the Pollution Control
Bonds and $1,647,124 of the Stated Amount of the Letter of Credit to be
available for the payment of interest, or the portion of purchase price
corresponding to interest, accrued on the Pollution Control Bonds; and
WHEREAS, in consideration of the commitment of the Bank to issue and
deliver the Letter of Credit as aforesaid, the Company proposes to create a new
series of First Mortgage Bonds, to be designated First Mortgage Bonds, Pollution
Control Series I, in the aggregate principal amount of $18,347,124 (said bonds
being hereinafter called the "Series I Bonds") and to issue and deliver the
Series I Bonds to the Bank, pursuant to the Bond Delivery Agreement, dated as of
May 1, 1996 (the "Bond Delivery Agreement"), between the Company and the Bank,
in order to provide collateral security for the obligation of the Company under
the Reimbursement Agreement (i) to reimburse all amounts paid by the Bank upon
drawings by the Pollution Control Trustee on the Letter of Credit (such
obligations to reimburse, without interest thereon, being hereinafter called the
"Reimbursement Obligations"), (ii) to pay interest on the Reimbursement
Obligations (including, without limitation, interest accruing after the date any
Reimbursement Obligation is due and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Company, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) as provided in the
Reimbursement Agreement and (iii) to pay all other obligations and liabilities
to the Bank, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of
or in connection with the Reimbursement Agreement, whether on account of the
Reimbursement Obligations and interest thereon or fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of counsel
to the Bank that are required to be paid by the Company pursuant to the terms of
the Reimbursement Agreement) or otherwise, but only to the extent that the
foregoing are attributable to the Letter of Credit (the Reimbursement
Obligations, interest on the Reimbursement Obligations as described in clause
(ii) above and all obligations described in clause (iii) above being
hereinafter, collectively, referred to as the "Obligations"); and
WHEREAS, the Company pursuant to the provisions of the Original Indenture,
has, by appropriate corporate action, duly resolved and determined to execute
this Supplemental Indenture for the purpose of providing for the creation of the
Series I Bonds and of specifying the form, provisions and particulars thereof as
in said Original Indenture provided or permitted and of giving to the Series I
Bonds the protection and security of the Indenture, and of further conforming
the lien of the Indenture; and
WHEREAS, the text of the Series I Bonds is to be substantially in the form
set forth on Exhibit A to this Supplemental Indenture; and
WHEREAS, all acts and proceedings required by law and by the charter and
by-laws of the Company, including all action requisite on the part of its
shareholders, directors and officers necessary to make the Series I Bonds, when
executed by the Company, authenticated and delivered by the Trustee and duly
issued, the valid, binding and legal obligations of the Company, and to
constitute this Supplemental Indenture a valid, binding and legal indenture
supplemental to the Original Indenture, in accordance with its and their terms,
have been done and taken; and the execution and delivery of this Supplemental
Indenture have been in all respects duly authorized;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: That Tucson
Electric Power Company, the Company herein named, in consideration of the
premises and of One Dollar ($1.00) to it duly paid by the Trustee at or before
the ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to secure the payment of the principal of and
interest and premium, if any, on all bonds from time to time outstanding under
the Indenture, according to the terms of said bonds and to further secure the
performance and observance of all the covenants and conditions contained in said
bonds and in the Indenture (except any covenant of the Company with respect to
the refund or reimbursement of taxes, assessments or other governmental charges
on account of the ownership of the bonds of any series or the income derived
therefrom, for which the holders of the bonds shall look only to the Company and
not to the property hereby mortgaged or pledged), has granted, bargained, sold,
released, conveyed, assigned, transferred, mortgaged, pledged, set over and
confirmed, and by these presents doth grant, bargain, sell, release, convey,
assign, transfer, mortgage, pledge, set over and confirm unto THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), as Trustee, and its successor or
successors in trust and its assigns forever, with the same force and effect as
though specifically described in the granting clauses of the Original Indenture,
and subject to the same reservations, exceptions, limitations, restrictions,
servitudes, easements, rights, privileges and prior liens as referred to in said
granting clauses and to "permitted encumbrances" (as defined in the Original
Indenture) and to the provisions of Article XI of the Original Indenture, the
properties described in Exhibit B to this Supplemental Indenture and all and
singular the premises, property, assets, rights and franchises of the Company
(except as in the Original Indenture expressly excepted), whether now or
hereafter owned, constructed or acquired, of whatever character and wherever
situated, including, among other things (but reference to or enumeration of any
particular kinds, classes or items or property shall not be deemed to exclude
from the operation and effect of the Indenture any kind, class or item not so
referred to or enumerated), all right, title and interest of the Company in and
to all plants for the generation of electricity by water, steam and/or other
power; all power houses, gas plants, gas holders, substations, transmission
lines, distributing systems; all offices, buildings and structures, and the
equipment thereof; all machinery, engines, boilers, dynamos, machines,
regulators, meters, transformers, generators and motors; all appliances whether
electrical, gas or mechanical, conduits, cables and lines; all mains and pipes,
service pipes, fittings, valves and connections, poles, wires, tools,
implements, apparatus, furniture, and chattels; all municipal franchises and
other franchises; all lines for the transmission and/or distribution of electric
current, or gas, including towers, poles, wires, cables, pipes, conduits, street
lighting systems and all apparatus for use in connection therewith; all real
estate, lands, leaseholds; all easements, servitudes, licenses, permits, rights,
powers, franchises, privileges, rights of way and other rights in or relating to
real estate or the occupancy of the same and all the right, title and interest
of the Company in and to all other property of any kind or nature appertaining
to and/or used and/or occupied and/or enjoyed in connection with any property
hereinbefore described; it being the intention of the parties that all property
of every kind, real, personal or mixed, other than excepted property, which may
be acquired by the Company after the date hereof, shall, immediately upon the
acquisition thereof by the Company, to the extent of such acquisition, and
without any further conveyance or assignment, become and be subject to the
direct lien of the Indenture as fully and completely as though now owned by the
Company and specifically described in the Indenture.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid premises,
property, assets, rights and franchises or any part thereof, with the reversion
and reversions, remainder and remainders, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which the Company
now has or may hereafter acquire in and to the aforesaid premises, property,
assets, rights and franchises and every part and parcel thereof.
And the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in the trust under the
Indenture, for the benefit of those who shall hold the bonds to be issued
hereunder and thereunder, as follows:
ARTICLE I
CREATION AND DESCRIPTION OF SERIES I BONDS
SECTION 1. A new series of bonds to be issued under and secured by the
Indenture is hereby created, to be designated as First Mortgage Bonds, Pollution
Control Series I. The Series I Bonds shall be limited to an aggregate principal
amount of $18,347,124, excluding any Series I Bonds which may be authenticated
in exchange for or in lieu of or in substitution for other Series I Bonds
pursuant to any provisions of the Original Indenture or of this Supplemental
Indenture. The Series I Bonds shall be substantially in the form set forth on
Exhibit A to this Supplemental Indenture.
All Series I Bonds shall mature May 1, 1999, and shall bear interest at the
rate of 12% per annum, payable quarterly on March 31, June 30, September 30 and
December 31 in each year, the beginning of the first interest period being the
date of the issuance and delivery of the Letter of Credit to the Pollution
Control Trustee. Interest on the Series I Bonds shall be computed and paid on
the basis of the actual number of days elapsed during the period for which
payment is made over a year of 365 or 366 days, as the case may be. The
principal of the Series I Bonds and the interest payable thereon at maturity
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, or in the City of Tucson, Arizona, upon
presentation thereof. Interest payable on the Series I Bonds prior to maturity
shall be paid by the Company directly to the holders thereof. The principal of
and interest on the Series I Bonds shall be payable in coin or currency of the
United States of America which at the time of payment shall be legal tender for
the payment of public and private debts.
The obligation of the Company to pay interest on the Series I Bonds on any
interest payment date prior to the maturity thereof (a) shall be deemed to have
been satisfied and discharged in full in the event that all Obligations then due
shall have been paid or (b) shall be deemed to remain unsatisfied in an amount
equal to the amount then due in respect of the Obligations and remaining unpaid
(not in excess, however, of the amount otherwise then due in respect of interest
on the Series I Bonds).
The obligation of the Company to pay the principal of and accrued interest
on the Series I Bonds at or after the stated maturity thereof, or upon or after
the acceleration of the maturity thereof pursuant to Section 3 of Article VIII
of the Original Indenture, (c) shall be deemed to have been satisfied and
discharged in full in the event that all Obligations then due shall have been
paid and the Letter of Credit shall have expired or been terminated in
accordance with the terms thereof or (d) shall be deemed to remain unsatisfied
in an amount equal to the amount then due in respect of the Obligations and
remaining unpaid (not in excess, however, of the amount otherwise then due in
respect of principal of and accrued interest on the Series I Bonds).
Anything in the Reimbursement Agreement or this Supplemental Indenture to
the contrary notwithstanding, to the extent that the amount of any payment due
in respect of the principal of or interest on the Series I Bonds is to be
determined by reference to the amount due in respect of the Obligations and
remaining unpaid, the amount due in respect of the Obligations shall be deemed
to be the amount, if any, remaining after any application of redemption proceeds
of Series I Bonds to the payment thereof pursuant to clause (i), (ii) or (iii)
of subsection (a) of Section 1.3 of the Bond Delivery Agreement.
The Trustee shall be entitled to presume that the obligation of the Company
to pay the principal of and interest on the Series I Bonds as the same shall
become due and payable, whether at maturity, upon redemption or otherwise, shall
have been fully satisfied and discharged unless and until it shall have received
a written notice from the Bank, signed by an authorized officer thereof, stating
that the principal of or interest on the Series I Bonds, as the case may be, has
become due and payable and has not been fully paid, and specifying the amount of
funds required to make such payment.
The Series I Bonds shall be dated as provided in Section 4 of Article II of
the Original Indenture and shall be issued in fully registered form only, in
denominations of $1,000 and any amount in excess thereof.
The Series I Bonds shall be issued and delivered to the Bank in order to
provide collateral security for the obligations of the Company under the
Reimbursement Agreement to pay the Obligations as contemplated herein. The
Series I Bonds shall be registered in the name of the Bank and shall be owned
and held by the Bank, subject to the provisions of the Bond Delivery Agreement,
and the Company shall have no interest therein. The Series I Bonds shall be
non-transferable.
The Series I Bonds shall be registrable and exchangeable at the office or
agency of the Company in the Borough of Manhattan, The City of New York, in the
manner and upon the terms set forth in Section 5 of Article II of the Original
Indenture, without payment of any charge.
SECTION 2. The Series I Bonds may be executed by the Company and delivered
to the Trustee and, upon compliance with all applicable provisions and
requirements of the Original Indenture in respect thereof, shall be
authenticated by the Trustee and delivered (without awaiting the filing or
recording of this Supplemental Indenture) in accordance with the written order
or orders of the Company.
ARTICLE II
REDEMPTION OF THE SERIES I BONDS
SECTION 1. If (a) an Event of Default under the Reimbursement Agreement
shall have occurred and be continuing, (b) the Pollution Control Corporation
shall be obligated to redeem the Pollution Control Bonds pursuant to Section
3.01(f) of the Pollution Control Indenture, (c) the Pollution Control Trustee
shall have made a drawing or drawings on the Letter of Credit, in accordance
with the terms thereof, for the payment of the redemption price of the Pollution
Control Bonds and (d) the Bank shall have paid the amount or amounts so drawn,
then all Series I Bonds shall be redeemed by the Company on the date of such
payment, at the principal amount thereof plus accrued interest to the redemption
date.
SECTION 2. In the event that all or substantially all of the electric
utility properties of the Company at the time subject to the lien of the
Indenture shall be sold, taken by eminent domain or otherwise disposed of, as an
entirety or substantially as an entirety, and shall be released from the lien of
the Indenture, the entire award or other cash proceeds of such sale, taking or
other disposition, together with any other Available Moneys (as defined in
Section 11 of Article VII of the Original Indenture), if any, then held by the
Trustee, shall, to the extent and in the manner provided in Section 11 of
Article VII of the Original Indenture, be applied to the pro rata payment or
redemption of the bonds of all series then outstanding under the Indenture, all
as more fully provided in the Original Indenture. In the event of any such sale
or taking and release, the redemption price of the Series I Bonds shall be the
principal amount thereof plus accrued interest to the redemption date and plus
an amount equal to all interest which (but for such redemption) would have
accrued from the redemption date until the stated maturity date of the Series I
Bonds to be redeemed. The proceeds of any such redemption shall be held by the
Bank and applied in accordance with the terms of the Bond Delivery Agreement.
SECTION 3. All of the provisions of Article V of the Original Indenture,
other than Sections 2 and 3 thereof, shall be applicable to the redemption of
the Series I Bonds (except that, in connection with a redemption of Series I
Bonds pursuant to Section 1 of this Article, no notice of redemption shall be
required to be given); and in the event that any redemption of the Series I
Bonds is required to be effected by the provisions of Section 11 of Article VII
of the Original Indenture, the "Available Moneys", as therein defined,
apportioned to the Series I Bonds (which apportionment shall be made after
giving effect to the provisions of Article I of this Supplemental Indenture)
shall be applied by the Trustee to the payment of the redemption price thereof,
or if such apportioned Available Moneys are insufficient for such full payment,
then, upon notice similar to that provided in the fourth paragraph of said
Section 11 in respect of the bonds referred to therein, to the payment of the
redemption price to the extent that such moneys shall suffice, pro rata, as
nearly as may be conveniently practicable, upon presentation and stamping in a
manner similar to that provided by Section 11 of Article VII of the Original
Indenture for the bonds referred to therein and the coupons appurtenant thereto.
Until the full amount then due and owing on all Series I Bonds shall have been
paid, no such partial payment shall discharge the obligation of the Company on
the Series I Bonds, except to the extent of such partial payment; and the
balance of principal, if any, remaining after such payment shall thereafter
constitute the unpaid obligation of the Company upon the Series I Bonds.
SECTION 4. The holder of each and every Series I Bond issued hereunder
hereby agrees to accept payment thereof prior to maturity on the terms and
conditions provided for in this Article II.
ARTICLE III
THE TRUSTEE
The Trustee hereby accepts the trusts created by this Supplemental
Indenture upon the terms and conditions in the Original Indenture as modified
and amended and in this Supplemental Indenture set forth. The Trustee shall not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or of the due execution hereof by the
Company, 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 XII of the Original Indenture shall apply to this
Supplemental Indenture with the same force and effect as if the same were herein
set forth in full, with such omissions, variations and modifications thereof as
may be appropriate to make the same conform to this Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 1. Subject to the variations contained in Section 3 of Article II
of this Supplemental Indenture, the Original Indenture, as heretofore modified,
amended and supplemented, is in all respect ratified and confirmed, and the
Original Indenture, this Supplemental Indenture and all other indentures
supplemental to the Original Indenture shall be read, taken and construed as one
and the same instrument. Neither the execution of this Supplemental Indenture
nor anything herein contained shall be construed to impair the lien of the
Indenture on any of the property subject thereto, and such lien shall remain in
full force and effect as security for all bonds now outstanding or hereinafter
issued under the Indenture. All terms defined in Article I of the Original
Indenture, as heretofore supplemented and amended, shall, for all purposes of
the Supplemental Indenture, have the meanings in said Article I specified,
unless the context otherwise requires.
SECTION 2. If the date for making any payment or the last date for
performance of any act or the exercising of any right, as provided in this
Supplemental Indenture, shall be a legal holiday or a day on which banking
institutions in The City of New York are authorized by law to remain closed,
such payment may be made or act performed or right exercised on the next
succeeding day that is not a legal holiday or a day on which such banking
institutions are authorized by law to remain closed, with the same force and
effect as if done on the nominal date provided in this Supplemental Indenture,
and no interest shall accrue for the period after such nominal date.
SECTION 3. This Supplemental Indenture may be executed in any number of
counterparts, and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, TUCSON ELECTRIC POWER COMPANY has caused its corporate
name to be hereunto affixed, and this instrument to be signed by one of its Vice
Presidents, and its corporate seal to be hereunto affixed and attached by one of
its Assistant Secretaries for and in its behalf; and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) has caused its corporate name to be hereunto affixed, and
this instrument to be signed by one of its Vice Presidents and its corporate
seal to be hereunto affixed and attested by one of its Assistant Secretaries,
for and in its behalf, all as of the day and year first above written.
TUCSON ELECTRIC POWER COMPANY
Attest: By:
Assistant Secretary Vice President
Signed, sealed and delivered
by Tucson Electric Power
Company in the presence of:
THE CHASE MANHATTAN BANK
(National Association), as Trustee
Attest: By:
Assistant Secretary Vice President
Signed, sealed and delivered
by The Chase Manhattan Bank
National Association)
in the presence of:
STATE OF ARIZONA )
): ss.:
COUNTY OF PIMA )
On this 26 day of April, 1996, before me, the undersigned
officer, personally appeared , who acknowledged him/herself
to be a Vice President and duly authorized agent of TUCSON ELECTRIC POWER
COMPANY, an Arizona corporation, and that s/he, as such Vice President being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by him/herself as a Vice
President.
The foregoing instrument was also acknowledged before me by said
, a Vice President of TUCSON ELECTRIC POWER COMPANY, an
Arizona corporation, on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My commission expires:
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On this 25 day of April, 1996, before me, the undersigned
officer, personally appeared , who acknowledged
him/herself to be a Vice President and duly authorized agent of THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a corporation, and that s/he, as such
Vice President being authorized so to do, executed the foregoing instrument for
the purposes therein contained, by signing the name of the corporation by
him/herself as a Vice President.
The foregoing instrument was also acknowledged before me by said
, a Vice President of THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a corporation, on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My commission expires:
EXHIBIT A
[Form of Bond]
This bond is non-transferable.
No. $
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TUCSON ELECTRIC POWER COMPANY
FIRST MORTGAGE BOND, POLLUTION CONTROL SERIES I
DUE ,1999
TUCSON ELECTRIC POWER COMPANY, a corporation of the State of Arizona
(hereinafter sometimes called the Company), for value received, promises to pay
to CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, the principal sum of
DOLLARS
on , in coin or currency of the United States of America which
at the time of payment shall be legal tender for the payment of public and
private debts, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, or in the City of Tucson, Arizona, upon
presentation hereof, and quarterly, on March 31, June 30, September 30 and
December 31 in each year, to pay interest (computed on the basis of the actual
number of days elapsed during the period for which payment is made over a year
of 365 or 366 days, as the case may be) thereon in like coin or currency at the
rate of 12% per annum, from the quarterly interest payment date next preceding
the date of this bond (unless this bond be dated on an interest payment date, in
which case from the date hereof; or unless this bond be dated prior to the first
interest payment date in respect hereof, in which case from the beginning of the
first interest period for bonds of this series), until the Company's obligation
with respect to such principal sum shall be discharged.
This bond is one of an issue of bonds of the Company, issued and to be
issued in one or more series under and equally and ratably secured (except as
any sinking, amortization, improvement, renewal or other fund, established in
accordance with the provisions of the indenture hereinafter mentioned, may
afford additional security for the bonds of any particular series) by a certain
mortgage and deed of trust (which, together with all indentures supplemental
thereto, including the Thirty-First Supplemental Indenture, dated as of May 1,
1996, is hereinafter called the "Indenture"), dated as of April 1, 1941, made by
The Tucson Gas, Electric Light and Power Company (Tucson Electric Power Company,
successor by merger) to the Chase National Bank of the City of New York (The
Chase Manhattan Bank, successor by merger), now The Chase Manhattan Bank
(National Association), as Trustee (hereinafter called the "Trustee"), to which
Indenture reference is hereby made for a description of the property mortgaged
and pledged, the nature and extent of the security provided by the Indenture,
the rights and limitations of rights of the Company, the Trustee and the holders
of said bonds with respect to the security provided by the Indenture, the
powers, duties and immunities of the Trustee, the terms and conditions upon
which said bonds are and are to be secured, and the circumstances under which
additional bonds may be issued, to all of which provisions the holder, by
accepting this bond, assents. To the extent permitted by and as provided in the
Indenture, the rights and obligations of the Company and the rights of the
holders of said bonds may be changed and modified, with the consent of the
Company, by the affirmative vote of the holders of at least 75% in aggregate
principal amount of the bonds then outstanding (excluding bonds disqualified
from voting by reason of the Company's interest therein as provided in the
Indenture), or by the affirmative vote of the holders of at least 75% in
aggregate principal amount of the bonds of any one or more series then
outstanding and entitled to vote and affected by such modification or alteration
in case one or more but less than all of the series of bonds then outstanding
under the Indenture are so affected, or in either case by the written consent of
the holders of such percentage of bonds; provided, that without the consent of
the holder hereof no such modification or alteration shall be made which will
permit the extension of the time of payment of the principal of or the interest
on this bond or a reduction in the principal amount hereof or rate of interest
hereon or any other modification of the terms of payment of such principal or
interest or will deprive the holder of any lien provided by the Indenture upon
the mortgaged property or reduce the percentage of bonds required for the
aforesaid action under the Indenture. The Company has reserved the right to
amend the Indenture without any consent or other action by holders of any series
of bonds created after July 31, 1976 (including this series) so as to change 75%
in the foregoing sentence to 60%. This bond is one of a series of bonds
designated as the First Mortgage Bonds, Pollution Control Series I, due May 1,
1999, of the Company.
The Company has issued and delivered the bonds of this series to Canadian
Imperial Bank of Commerce, New York Agency (the "Bank"), in order to provide
collateral security for the obligation of the Company under the Reimbursement
Agreement, dated as of May 1, 1996 (the "Reimbursement Agreement"), to pay the
Obligations (as defined in the aforesaid Thirty-First Supplemental Indenture,
dated as of May 1, 1996 (the "Thirty-First Supplemental Indenture")).
The obligation of the Company to pay interest on the bonds of this series
on any interest payment date prior to the maturity thereof (a) shall be deemed
to have been satisfied and discharged in full in the event that all Obligations
then due shall have been paid or (b) shall be deemed to remain unsatisfied in an
amount equal to the amount then due in respect of the Obligations and remaining
unpaid (not in excess, however, or the amount otherwise then due in respect of
interest on the bonds of this series).
The obligation of the Company to pay the principal of and accrued interest
on the bonds of this series at the stated maturity thereof, or upon the
acceleration of the maturity thereof pursuant to Section 3 of Article VIII of
the Original Indenture, (c) shall be deemed to have been satisfied and
discharged in full in the event that all Obligations then due shall have been
paid and the Letter of Credit (as defined in the Thirty-First Supplemental
Indenture) shall have expired or been terminated in accordance with the terms
thereof or (d) shall be deemed to remain unsatisfied in an amount equal to the
amount then due in respect of the Obligations and remaining unpaid (not in
excess, however, of the amount otherwise then due in respect principal of and
accrued interest on the Series I Bonds).
Anything in the Reimbursement Agreement or this bond to the contrary
notwithstanding, to the extent that the amount of any payment due in respect of
the principal of or interest on the bonds of this series is to be determined by
reference to the amount due in respect of the Obligations and remaining unpaid,
the amount due in respect of the Obligations shall be deemed to be the amount,
if any, remaining after any application of redemption proceeds of bonds of this
series to the payment thereof pursuant to clause (i), (ii) or (iii) of
subsection (a) of Section 1.3 of the Bond Delivery Agreement, dated as of May
1, 1996, between the Company and the Bank.
If (a) an Event of Default under the Reimbursement Agreement shall have
occurred and be continuing, (b) the Pollution Control Corporation (as defined in
the Thirty-First Supplemental Indenture) shall be obligated to redeem the
Pollution Control Bonds (as so defined) pursuant to Section 3.01(f) of the
Pollution Control Indenture, (c) the Pollution Control Trustee (as so defined)
shall have made a drawing or drawings on the Letter of Credit (as so defined),
in accordance with the terms thereof, for the payment of the redemption price of
the Pollution Control Bonds and (d) the Bank shall have paid the amount or
amounts so drawn, then all bonds of this series shall be redeemed by the Company
on the date of such payment, at the principal amount hereof plus accrued
interest to the redemption date.
In the event that all or substantially all of the electric utility
properties of the Company at the time subject to the lien of the Indenture shall
be sold, taken by eminent domain or otherwise disposed of, as an entirety or
substantially as an entirety, and shall be released from the lien of the
Indenture, the entire award or other cash proceeds of such sale, taking or other
disposition, together with certain moneys, if any, then held by the Trustee,
shall, to the extent and in the manner provided by the Indenture, be applied to
the pro rata payment or redemption of bonds of all series then outstanding under
the Indenture, all as more fully provided therein, and this bond shall, in such
event, become subject to such redemption or payment. In the event of any such
sale of taking and release, the redemption price of this bond shall be the
principal amount hereof plus accrued interest to the redemption date and plus an
amount equal to all interest which (but for such redemption) would have accrued
from the redemption date until the stated maturity date of this bond.
If this bond or any portion hereof shall be called for redemption and
payment of the redemption price shall be duly provided by the Company as
specified in the Indenture, interest shall cease to accrue on this bond or such
portion hereof from and after the date for redemption fixed in the notice
thereof.
The principal of this bond and the interest accrued hereon may become or be
declared due and payable before the stated maturity hereof, on the conditions,
in the manner and at the times set forth in the Indenture, upon the happening of
a default as therein provided.
This bond is non-transferable except as required to effect transfer to any
successor Bank under the Reimbursement Agreement, any such transfer to be made
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, upon surrender and cancellation of this bond, and upon any such
transfer a new bond of this series, for the same aggregate principal amount and
having the same maturity date, will be issued to the transferee in exchange
herefor. The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes. This bond, alone or with other
bonds of this series, may in like manner be exchanged at such office or agency
for one or more bonds of this series of the same aggregate principal amount and
having the same maturity date and interest rate, all as provided in the
Indenture.
No recourse shall be had for the payment of the principal of, or premium,
if any, or interest on this bond, or for any claim based hereon or otherwise in
respect hereof or of the Indenture, against any incorporator, shareholder,
director or officer, as such, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or through the Company or
any predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or by
any legal or equitable proceeding or otherwise howsoever (including, without
limiting the generality of the foregoing, any proceeding to enforce any claimed
liability of shareholders of the Company, based upon any theory of disregarding
the corporate entity of the Company or upon any theory that the Company was
acting as the agent or instrumentality of the shareholders); all such liability
being, by the acceptance hereof and as a part of the consideration for the
issuance hereof, expressly waived and released by every holder hereof, and being
likewise waived and released by the terms of the Indenture under which this bond
is issued, as more fully provided in said Indenture.
This bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by The Chase
Manhattan Bank (National Association), or its successor, as Trustee under said
Indenture.
IN WITNESS WHEREOF, the Company has caused this bond to be signed in its
name by the manual or facsimile signature of its President or one of its Vice
Presidents, and its corporate seal, or a facsimile thereof, to be impressed or
imprinted hereon and attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries.
Dated
TUCSON ELECTRIC POWER COMPANY
By:
Attest:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the bonds, of the series designated therein, described in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association), as Trustee
By:
EXHIBIT B
The South Half of Section 27 and the North Half of Section 34,
Township 11 North, Range 30 East of the Gila and Salt River Base
and Meridian, Apache County, Arizona.
The Southeast Half of the North Half (SE2N2) and the South Half
(S2) of Section 28, Township 11 North, Range 30 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
The North Half (N2) of Section 33, Township 11 North, Range 30
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
The North Half (N2) of Section 27, Township 11 North, Range 30
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
The Southwest Quarter (SW4) of Section 20, Township 11 North,
Range 30 East, Gila and Salt River Base and Meridian, Apache
County, Arizona.
Lots 1, 2, 3, 4 and the East Half of the West Half (E2W2) and the
East Half (E2) of Section 19, Township 11 North, Range 30 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
All of Section 29, Township 11 North, Range 30 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
Lots 1 and 2 and the East Half of the Northwest Quarter (E2NW4)
and the Northeast Quarter (NE4) of Section 30, Township 11 North,
Range 30 East, Gila and Salt River Base and Meridian, Apache
County, Arizona.
Lots 3 and 4 and the East Half of the Southwest Quarter (E2SW4)
and the Southeast Quarter (SE4) of Section 31, Township 11 North,
Range 30 East, Gila and Salt River Base and Meridian, Apache
County, Arizona.
The Northeast Quarter (NE4) and the South Half (S2) of Section
32, Township 11 North, Range 30 East, Gila and Salt River Base
and Meridian, Apache County, Arizona.
The North Half (N2) of Section 33, Township 11 North, Range 30
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
Lots 3 and 4 and the East Half of the Southwest Quarter (E2SW4)
of Section 7, Township 10 North, Range 30 East, Gila and Salt
River Base and Meridian, Apache County, Arizona.
Lots 1, 2, 3, 4 and the East Half of the West Half (E2W2) and the
East Half (E2) of Section 18, Township 10 North, Range 30 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
Lots 1, 2, 3, 4 and the East Half of the West Half (E2W2) and the
East half (E2) of Section 19, Township 10 North, Range 30 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
The South Half (S2) of Section 13, Township 11 North, Range 29
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
The North Half (N2) and the Southeast Quarter (SE4) of Section
24, Township 11 North, Range 29 East, Gila and Salt River Base
and Meridian, Apache County, Arizona.
That portion of the South Half of the South Half (S2S2) of
Section 26, Township 11 North, Range 29 East, Gila and Salt River
Base and Meridian, Apache County, Arizona, described as follows:
Beginning at the Southwest Corner of said Section 26, thence
North along the West line of said Section 1000.0 feet to a point;
thence East 1050.0 feet to a point; thence S51d30E, 1200.0 feet
to a point; thence N71d30E, 1300.0 feet to a point; thence North
400.0 feet to a point; thence S60d00E, 900.0 feet to a point;
thence South, 200.0 feet to a point; thence S58d43W, 800.0 feet
to a point in the South line of said Section 26; thence West
along the South line of said Section a distance of 3317.45 feet
to the point of beginning.
The Southwest Quarter (SW4) of Section 27, Township 11 North,
Range 29 East, Gila and Salt River Base and Meridian, Apache
County, Arizona.
The South Half (S2) of Section 28, Township 11 North, Range 29
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
The South Half (S2) and the Southwest Quarter of the Northwest
Quarter (SW4NW4) of Section 29, Township 11 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
The Southeast Quarter of the Southwest Quarter (SE4SW4) and the
South Half of the Northeast Quarter (S2NE4) and the Southeast
Quarter (SE4) of Section 31, Township 11 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
All of Section 32, Township 11 North, Range 29 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
All of Section 33, Township 11 North, Range 29 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
The Northwest Quarter (NW4) and the South Half (S2) of Section
34, Township 11 North, Range 29 East, Gila and Salt River Base
and Meridian, Apache County, Arizona.
Section 35, Township 11 North, Range 29 East, Gila and Salt River
Base and Meridian, Apache County, Arizona, except: Beginning at
the Northeast corner of said section, thence West along the North
section line 1976.87 feet; thence South 1354.73 feet; thence
South 26 East 1430 feet; thence East 1350 feet to a point on the
East line of said section; thence North along said East line 2640
feet to the point of beginning.
The South Half (S2) of Section 36, Township 11 North, Range 29
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
Lots 3 and 4 and the South Half of the Northwest Quarter (S2NW4)
and the Southwest Quarter (SW4) of Section 3, Township 10 North,
Range 29 East, Gila and Salt River Base and Meridian, Apache
County, Arizona.
Lots 1, 2, 3, 4 and the South Half of the North Half (S2N2) and
the South Half (S2) of Section 4, Township 10 North, Range 29
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
Lots 1, 2, 3, 4 and the South Half of the North Half (S2N2) and
the East Half of the Southwest Quarter (E2SW4) and the Southeast
Quarter (SE4) of Section 5, Township 10 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
Lot 1 of Section 6, Township 10 North, Range 29 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
The East Half (E2) and the Northwest Quarter (NW4) and the East
Half of the Southwest Quarter (E2SW4) of Section 9, Township 10
North, Range 29 East, Gila and Salt River Base and Meridian,
Apache County, Arizona.
All of Section 10, Township 10 North, Range 29 East, Gila and
Salt River Base and Meridian, Apache County, Arizona.
The South Half (S2) of Section 11, Township 10 North, Range 29
East, Gila and Salt River Base and Meridian, Apache County,
Arizona.
The Southwest Quarter (SW4) and the North Half of the Southeast
Quarter (N2SE4) of Section 12, Township 20 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
The Northeast Quarter (NE4) and the North Half of the Northwest
Quarter (N2NW4) and the Southeast Quarter of the Northwest
Quarter (SE4NW4) of Section 14, Township 10 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
The Southwest Quarter of the Northwest Quarter (SW4NW4) and the
North Half of the Northeast Quarter (N2NE4) and the Southeast
Quarter of the Northeast Quarter (SE4NE4) of Section 15, Township
10 North, Range 29 East, Gila and Salt River Base and Meridian,
Apache County, Arizona.
The East Half of the Northwest Quarter (E2NW4) and the Northeast
Quarter (NE4) of Section 16, Township 10 North, Range 29 East,
Gila and Salt River Base and Meridian, Apache County, Arizona.
A strip of land 170 feet in width being 85 feet on either side of
the following described centerline in Lot 22 in Section 14,
Township 14 South, Range 13 East, Gila and Salt River Base and
Meridian, Pima County, Arizona.
COMMENCING at a point in the Congress Street Monument Line, as
said line has been established by the City of Tucson Engineering
Department, which point is North 83 degrees 52 minutes 05 seconds
East, along said Monument Line, a distance of 272.41 feet from
the Survey Monument at the intersection of Congress Street and
Conita Street;
THENCE South 8 degrees 53 minutes 40 seconds East, a distance of
622.53 feet to a point;
THENCE South 4 degrees 31 minutes 12 seconds West, a distance of
1446.13 feet to a point;
THENCE South 19 degrees 48 minutes 42 seconds West, a distance of
150 feet to the TRUE POINT OF BEGINNING;
THENCE North 89 degrees 59 minutes 30 seconds East, a distance of
300 feet, more or less, to the point of terminus on the Westerly
property line of that portion of Lot 22 in Section 14, Township
14 South, Range 13 East, Gila and Salt River Base and Meridian,
Pima County, Arizona, that is particularly described in the Pima
County Recorder's Office in Book 3606, page 342.
EXCEPT that portion lying within that certain parcel described as
Parcel No. 3 in Book 289 of Dockets at pages 113-118 in the Pima
County Recorders Office.
Said parcel of land also being conveyed by that certain deed from
George D. Calliehan to El Paso and Southwestern Railroad Company,
a corporation dated November 13, 1913, recorded November 15, 1913
in Book 57 of Deeds of Real Estate in the office of the County
Recorder of Pima County, Arizona at pages 170-171.
All that portion of the Southwest quarter of the Southeast
quarter of Section 14, Township 15 South of Range 13 East, Gila
and Salt River Base and Meridian, Pima County, Arizona, being
more particularly described as follows:
BEGINNING at the Southwest corner of the Southwest quarter of the
Southeast quarter of said Section 14;
THENCE run North 00 degrees 51 minutes East, a distance of 764
feet, more or less, to the Northeast corner of that certain
parcel of land described as Parcel 2 in Judgment on Declaration
of Taking recorded in the office of the County Recorder of Pima
County, Arizona, in Docket 273 at page 302;
THENCE run South 28 degrees 45 minutes East, a distance of 869
feet, more or less, along the Northeasterly line of the aforesaid
Parcel 2 to its intersection with the South line of said Section
14;
THENCE run South 89 degrees 38 minutes West along the South line
of said Section 14 to the point of beginning;
EXCEPTING therefrom all that portion thereof lying within the
boundaries of Los Reales Road as shown in the office of the
County Recorder of Pima County, Arizona, in Book 7 of Road Maps,
Page 19.
Lots 11 and 12 of Lakeside Business Park, a subdivision of Pima
County, Arizona, according to the map or plat thereof of record
in the office of the County Recorder of Pima County, Arizona, in
Book 35 of Maps and Plats at page 50 thereof.