EXHIBIT 4.7.1
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PUBLIC SERVICE COMPANY OF NEW MEXICO
TO
JPMORGAN CHASE BANK
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of September 1, 2003
To
INDENTURE
Dated as of August 1, 1998
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Providing for
4.40% Senior Unsecured Notes Due 2008
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SECOND SUPPLEMENTAL INDENTURE, dated as of September 1, 2003, between Public
Service Company of New Mexico, a corporation duly organized and existing under
the laws of the State of New Mexico (herein called the "Company"), having its
principal office at Alvarado Square, Albuquerque, New Mexico 87158, and JPMORGAN
CHASE BANK (formerly known as The Chase Manhattan Bank), a New York banking
corporation, as Trustee (herein called the "Trustee") under the Indenture, dated
as of August 1, 1998, between the Company and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
The Company has executed and delivered the Indenture to the Trustee to
provide for the issuance from time to time of its senior notes (the "Notes"),
said Notes to be issued in one or more series as in the Indenture provided.
The Company has executed and delivered to the Trustee a First
Supplemental Indenture, dated as of August 1, 1998, between the Company and the
Trustee to establish the forms and terms of two series of Notes (the Indenture,
as supplemented by said First Supplemental Indenture, the "Indenture, as
heretofore supplemented").
Pursuant to the terms of the Indenture, the Company desires to provide
for the establishment of a new series of its Notes to be known as its 4.40%
Senior Unsecured Notes Due 2008 (herein called the "2003 Notes"), the form and
substance of such 2003 Notes and the terms, provisions, and conditions thereof
to be set forth as provided in the Indenture and this Second Supplemental
Indenture.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company, and to make the 2003 Notes, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the 2003
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the 2003 Notes and the terms,
provisions, and conditions thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the 2003 Notes as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF
THE 2003 NOTES
Section 1.01 There shall be and is hereby authorized a series of Notes
designated the "4.40% Senior Unsecured Notes Due 2008". The 2003 Notes shall be
limited in aggregate principal amount to $300,000,000. The 2003 Notes shall
mature and the principal thereof shall be due and payable together with all
accrued and unpaid interest thereon on September 15, 2008.
2
Section 1.02 The 2003 Notes shall be issued in fully registered form
without coupons, initially as one or more Global Notes to and registered in the
name of Cede & Co., as nominee of The Depository Trust Company, as Depositary
therefor. Any 2003 Notes to be issued or transferred to, or to be held by, Cede
& Co. (or any successor thereof) for such purpose shall bear the depositary
legend in substantially the form set forth in the second paragraph at the top of
the form of 2003 Note in Article II hereof (in addition to that set forth in
Section 2.04 of the Indenture), unless otherwise agreed by the Company, such
agreement to be confirmed in writing to the Trustee. Each such Global Note may
be exchanged in whole or in part for a 2003 Note of the same series registered,
and any transfer of such Global Note in whole or in part may be registered, in
the name or names of Persons other than such Depositary or a nominee thereof
only under the circumstances set forth in Clause (2) of the last paragraph of
Section 3.05 of the Indenture, or such other circumstances in addition to or in
lieu of those set forth in Clause (2) of the last paragraph of Section 3.05 of
the Indenture as to which the Company shall agree, such agreement to be
confirmed in writing to the Trustee.
Section 1.03 Each 2003 Note will bear interest at the rate of 4.40% per
annum from September 17, 2003 or from the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for,
payable semi-annually on March 15 and September 15 in each year (each an
"Interest Payment Date"), commencing March 15, 2004, until the principal thereof
is paid or made available for payment. The interest so payable on a 2003 Note,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name such 2003 Note or
any Predecessor Note is registered at the close of business on the Regular
Record Date for such interest, which shall be the March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such installment of interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name such 2003
Note or any Predecessor Note is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the 2003 Notes not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the 2003 Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The amount of interest payable on the 2003 Notes for any period will be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any Interest Payment Date, Redemption Date or Stated Maturity of any 2003
Note is not a Business Day, then payment of interest or principal (and premium,
if any) payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), in each case with the same force and effect as if made on such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
As used herein, a "Business Day" means any day, other than a Saturday
or Sunday, or day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or a day on
which the Corporate Trust Office of the Trustee is closed for business.
3
Section 1.04 Payment of the principal of, and premium, if any, and
interest on the 2003 Notes shall be payable, and registration of transfer and
exchanges of the 2003 Notes may be effected, and notices and demands to or upon
the Company in respect of the 2003 Notes and the Indenture may be served at the
office or agency of the Company maintained for that purpose in The City and
State of New York, which shall be the Corporate Trust Office of the Trustee or
at such other office or agency in The City of New York and State of New York as
may be designated for such purpose by the Company from time to time; and such
payment shall be made in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Note Register.
Section 1.05 The Company, at its option, may redeem at any time all,
or, from time to time, any part of the 2003 Notes on not less than 30 days nor
more than 60 days notice as provided in the Indenture (except that,
notwithstanding the provisions of Section 11.04 of the Indenture, any notice of
redemption for the 2003 Notes given pursuant to said Section need not set forth
the Redemption Price but only the manner of calculation thereof) at a Redemption
Price equal to the greater of (i) 100% of the principal amount of the 2003 Notes
being redeemed and (ii) as determined by the Independent Investment Banker, the
sum of the present values of the remaining scheduled payments of principal of
and interest on the 2003 Notes being redeemed (excluding the portion of any such
interest accrued to the Redemption Date), discounted (for purposes of
determining such present values) to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate plus 0.25%, plus, in either case, accrued and unpaid interest
thereon to the Redemption Date.
For purposes of this Section 1.05, the following terms shall have the
following meanings:
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
The Adjusted Treasury Rate shall be calculated on the third Business
Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the 2003 Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the 2003 Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of three Reference Treasury Dealer Quotations for such Redemption
Date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers that the Company appoints to act as the Independent Investment Banker
from time to time or, if any of such firms is unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Company.
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"Reference Treasury Dealer" means (1) Banc of America Securities LLC,
Citigroup Global Markets Inc. and J.P. Morgan Securities Inc. and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company will substitute therefor another Primary
Treasury Dealer, and (2) any other Primary Treasury Dealer(s) selected by the
Independent Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m. on the third Business Day preceding such Redemption Date.
If less than all of the 2003 Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, the
particular 2003 Notes or portions thereof to be redeemed. Notice of redemption
shall be given by mail not less than 30 nor more than 60 days prior to the
Redemption Date to the Holders of 2003 Notes to be redeemed (which, as long as
the 2003 Notes are held in the book-entry only system, will be The Depository
Trust Company (or its nominee) or a successor Depositary); provided, however,
that the failure to duly give such notice by mail, or any defect therein, shall
not affect the validity of any proceedings for the redemption of 2003 Notes as
to which there shall have been no such failure or defect. Such notice may state
that such redemption shall be conditional upon receipt by the Paying Agent or
Agents for such 2003 Notes, on or prior to the Redemption Date, of money
sufficient to pay the principal of and premium, if any, and interest, if any, on
such Notes and that if such money shall not have been so received such notice
shall be of no force or effect and the Company shall not be required to redeem
such Notes. On and after the Redemption Date (unless the Company shall default
in the payment of the 2003 Notes or portions thereof to be redeemed at the
applicable Redemption Price, together with interest accrued thereon to such
date), interest on the 2003 Notes or the portions thereof so called for
redemption shall cease to accrue.
The Trustee shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in relying upon the
Independent Investment Banker's calculation of any Redemption Price.
The Independent Investment Banker shall give to the Company and the
Trustee written notice of the Redemption Price applicable to the 2003 Notes
promptly after calculation thereof.
The 2003 Notes will not be subject to any sinking fund.
Section 1.06 The 2003 Notes shall be defeasible pursuant to Section
13.02 and Section 13.03 of the Indenture.
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ARTICLE II
FORM OF 2003 NOTES
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Section 2.01 The 2003 Notes and the Trustee's certificate of
authentication to be endorsed thereon are to be substantially in the following
form:
Form of 2003 Note.
[Global Note Legends]
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO
TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Public Service
Company of New Mexico or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
Form of Face of 4.40% Senior Unsecured Notes Due 2008.
PUBLIC SERVICE COMPANY OF NEW MEXICO
4.40 % Senior Unsecured Notes Due 2008
No.
________
$________
CUSIP No.
________
PUBLIC SERVICE COMPANY OF NEW MEXICO, a corporation duly organized and
existing under the laws of New Mexico (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________, or registered assigns, the
principal sum of ________ Dollars on September 15, 2008, and to pay interest
thereon from September 17, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on March 15 and
September 15 in each year, commencing March 15, 2004, at the rate of 4.40% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
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business on the Regular Record Date for such interest, which shall be the March
1 or September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By:
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[Title]
Attest:
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[Title]
Form of Trustee's Certificate of Authentication.
CERTIFICATION OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
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Dated: JPMORGAN CHASE BANK,
As Trustee
By:
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Authorized Officer
Form of Reverse of 4.40% Senior Unsecured Notes Due 2008.
This Note is one of a duly authorized issue of senior notes of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of August 1, 1998, as supplemented (herein,
together with any amendments thereto, called the "Indenture", which term shall
have the meaning assigned to it in such instrument), between the Company and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture, including the
Second Supplemental Indenture, dated as of September 1, 2003, creating the
series designated on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof limited in aggregate principal amount to
$300,000,000.
The Company, at its option, may redeem at any time all, or, from time
to time, any part of the Notes of this series on not less than 30 days nor more
than 60 days notice as provided in the Indenture (except that, notwithstanding
the provisions of Section 11.04 of the Indenture, any notice of redemption for
the Notes of this series given pursuant to said Section need not set forth the
Redemption Price but only the manner of calculation thereof) at a Redemption
Price equal to the greater of (i) 100% of the principal amount of the Notes of
this series being redeemed and (ii) as determined by the Independent Investment
Banker, the sum of the present values of the remaining scheduled payments of
principal of and interest on the Notes of this series being redeemed (excluding
the portion of any such interest accrued to the Redemption Date), discounted
(for purposes of determining such present values) to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus 0.25%, plus, in either case, accrued and
unpaid interest thereon to the Redemption Date.
For purposes of the foregoing optional redemption provisions, the
following terms shall have the following meanings:
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
8
The Adjusted Treasury Rate shall be calculated on the third Business
Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes of this series that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes of this series.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of three Reference Treasury Dealer Quotations for such Redemption
Date.
"Independent Investment Banker" means one of the Reference Treasury
Dealers that the Company appoints to act as the Independent Investment Banker
from time to time or, if any of such firms is unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Company.
"Reference Treasury Dealer" means (1) Banc of America Securities LLC,
Citigroup Global Markets Inc. and J.P. Morgan Securities Inc. and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company will substitute therefor another Primary
Treasury Dealer, and (2) any other Primary Treasury Dealer(s) selected by the
Independent Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m. on the third Business Day preceding such Redemption Date.
The Trustee shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in relying upon the
Independent Investment Banker's calculation of any Redemption Price.
The Notes of this series will not be subject to any sinking fund.
In the event of redemption of this Note in part only, a new Note or
Notes of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
9
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits the Company and the Trustee to enter into one or
more supplemental indentures for certain purposes as therein provided without
the consent of any Holders. In addition, the Indenture permits, with certain
exceptions as therein provided, the Company and the Trustee to enter into one or
more supplemental indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, the Indenture
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of all series then Outstanding under the
Indenture, considered as one class; provided, however, that if there shall be
Notes of more than one series Outstanding under the Indenture and if a proposed
supplemental indenture shall directly affect the rights of the Holders of Notes
of one or more, but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding Notes of
all series so directly affected, considered as one class, shall be required; and
provided, further, that if the Notes of any series shall have been issued in
more than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Notes of one or more, but less than all, of
such Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Notes of all Tranches so directly affected,
considered as one class, shall be required. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each, or all series, as the case may be, then Outstanding under
the Indenture, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and
permitting the Holders of specified percentages in principal amount of the Notes
of each series Outstanding under the Indenture, on behalf of the Holders of all
Notes of such series, to waive certain past defaults under the Indenture and
their consequences, provided, however, that if any such past default affects
more than one series of Notes, the Holders of a majority in aggregate principal
amount of the Outstanding Notes of all such series, considered as one class,
shall have the right to waive such past default, and not the Holders of the
Notes of any one such series. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than a majority in aggregate
principal amount of the Notes of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity, and
the Trustee shall not have received from the Holders of a majority in principal
amount of Notes of all series at the time Outstanding in respect of which an
Event of Default shall have occurred and be continuing a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
10
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
As used herein, a "Business Day" means any day other than a Saturday or
a Sunday or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or a day on
which the Corporate Trust Office of the Trustee is closed for business. All
other terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
ARTICLE III
ORIGINAL ISSUE OF 2003 NOTES
Section 3.01 2003 Notes in the aggregate principal amount of
$300,000,000 may, upon execution of this Second Supplemental Indenture, or from
time to time thereafter, be executed on behalf of the Company by any officer or
employee authorized to do so by a Board Resolution, under its corporate seal
affixed thereto or reproduced thereon attested by its Secretary or by one of its
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Assistant Secretaries and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said 2003 Notes in accordance
with a Company Order delivered to the Trustee by the Company, all pursuant to
and in accordance with Section 3.03 of the Indenture, as heretofore
supplemented.
ARTICLE IV
PAYING AGENT AND REGISTRAR
Section 4.01 JPMorgan Chase Bank will be the Paying Agent and
Note Registrar for the 2003 Notes.
ARTICLE V
SUNDRY PROVISIONS
Section 5.01 Except as otherwise expressly provided in this Second
Supplemental Indenture or in the form of 2003 Notes or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form
of the 2003 Notes that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
Section 5.02 The Indenture, as heretofore supplemented and as
supplemented by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.
Section 5.03 The Trustee hereby accepts the trusts herein declared,
provided, created, supplemented, or amended and agrees to perform the same upon
the terms and conditions herein and in the Indenture set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this
Second Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made by
the Company solely. In general, each and every term and
condition contained in Article VI of the Indenture shall apply
to and form part of this Second Supplemental Indenture with
the same force and effect as if the same were herein set forth
in full with such omissions, variations, and insertions, if
any, as may be appropriate to make the same conform to the
provisions of this Second Supplemental Indenture.
Section 5.04 This Second Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and the Company has caused its
corporate seal to be hereunto affixed and attested, all as of the day and year
first above written.
PUBLIC SERVICE COMPANY OF NEW MEXICO
By: /s/ J. R. Loyack
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J. R. Loyack
Senior Vice President
and Chief Financial Officer
Attest:
/s/ S.J. Acosta
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Assistant Secretary
JPMORGAN CHASE BANK, as Trustee
By: /s/ N. Moran
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N. Moran
Vice President
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