REFUNDING AGREEMENT NO. 3
REFUNDING AGREEMENT NO. 3 dated as of September 27, 1996 (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 December 16, 1985 (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 December 16,
1985 (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 the Participation
Agreement dated as of December 16, 1985 (as heretofore amended, the
"Participation 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 (formerly known as
"Chemical Bank") 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 Section 8(a) hereof, the Owner Trustee has
determined to effect a partial prepayment of a portion of one of the Notes as
specified in Schedule I hereto (the "Prepayment") on the Closing Date (as
defined below). The Note subject to Prepayment is hereinafter called the
"Subject Note".
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 (i)
$32,256,000 of its 10.30% Lease Obligation Bonds Series 1986A, Due January 15,
2014 (the "Series
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A Bonds") and (ii) $167,744,000 of its 10.15% Lease Obligation Bonds, Series
1986B, Due January 15, 2016 (the "Series B Bonds").
E. 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 "1996 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 1996 Refunding Note (the "Purchase Price") will equal the
principal amount thereof plus interest accrued thereon from July 15, 1996.
F. Funding Corporation shall obtain certain of the funds
necessary for the Redemption from (a) the proceeds of (i) the prepayment price
of the portion of the Subject Note being prepaid and (ii) the prepayment prices
being simultaneously paid in connection with the prepayment in part of the other
Pledged Lessor Notes listed on Schedule II hereto other than the Subject Note
(the "Transaction Lessor Notes") and (b) amounts paid by PNM pursuant to Section
4(c) of this Agreement and similar provisions of the refunding agreements
relating to the other Transaction Lessor Notes.
G. 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.
H. 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 1996 Supplemental Indenture to the Lease
Indenture, dated as of September 27, 1996 (the "1996 Note Supplement"),
providing for the issuance under the Lease Indenture of the 1996 Refunding Note
as contemplated in the 1996 Note Supplement. The form of the 1996 Note
Supplement is attached as Exhibit A hereto.
I. 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 1996 Refunding Note on the terms and conditions set forth herein.
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J. Since the 1996 Refunding Note taken together with 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, 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 1996 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; Acknowledgment; etc.
(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) On October 2, 1995 (the "Transfer Date"), FNB transferred
to State Street substantially all of the corporate trust business of FNB. State
Street is a trust company incorporated in Massachusetts and doing business in
the United States of America. State Street has a combined capital and surplus of
at least $50,000,000. Pursuant to Section 9.01(d) of the Trust Agreement, on the
Transfer Date State Street became the Owner Trustee under the Trust Agreement
and, therefore, the other Transaction Documents. State Street acknowledges and
agrees that, as of the Transfer Date, it has assumed all of the duties and
obligations of FNB under the Trust Agreement and the other Transaction
Documents. The parties hereto (other than the Owner Trustee) acknowledge the
succession of State Street as Owner Trustee under and in respect of the
Transaction Documents.
(c) Simultaneously with the execution and delivery of this
Agreement, the parties hereto (other than the Owner Participant) will be
entering into six other refunding agreements substantially similar to this
Agreement (the "Other Refunding Agreements"), one with respect to each of the
Transaction Lessor Notes. In the event that the Issuance and Sale contemplated
by one or more of the Other Refunding Agreements shall not occur for any reason,
the Redemption shall be modified to reduce the respective principal amounts of
Series A Bonds and Series B Bonds to be subject to such Redemption such that the
principal amount of Subject Bonds (as defined in Section 2(a) below) to be
redeemed equals the principal amount of the Prepayment hereunder and the
Prepayments under such Other Refunding Agreements in respect of which Issuance
and Sales shall simultaneously be occurring.
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SECTION 2. Agreements of Funding Corporation.
(a) On the Closing Date (as defined in Section 6 below),
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 $32,256,000 of Series A Bonds and
$167,744,000 of Series B Bonds (collectively, the "Subject Bonds"). The
redemption date specified in the Notice of Redemption is October 17, 1996 (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.
SECTION 3. Agreements of Owner Trustee.
(a) On the Closing Date, the Owner Trustee will:
(i) execute and deliver the 1996 Note Supplement;
(ii) execute and deliver the 1996 Refunding Note;
(iii) execute and deliver an 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"); and
(v) cause to be delivered an opinion of its counsel in
the form of Exhibit E.1 hereto.
(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 1996
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 1996
Refunding Note for such date equals the "principal amount payable" for such
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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 1996 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").
(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 an amount which, together with other funds
available in the Account, will be sufficient to pay the aggregate redemption
price of the Subject Bonds on and as of the Redemption Date (the "Aggregate
Redemption Price").
(d) PNM agrees that, upon acquisition by PNM of the 1996
Refunding Note, PNM will not thereafter sell, assign, transfer or otherwise
dispose of any portion of the 1996 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 1996 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 1996 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 1996 Refunding Note.
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(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 1996 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 1996 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 1996 Refunding Note.
SECTION 5. Agreements of the Owner Participant.
(a) The Owner Participant agrees that the acquisition by PNM
of the 1996 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 hereof).
(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 September 27, 1996 (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 1996 Supplement, (B) the Owner Trustee shall have
executed and delivered (I) the Allonge and (II) the 1996 Refunding
Note, (C) the Indenture Trustee shall have authenticated the 1996
Refunding Note and delivered the same to PNM, (D) the Funding
Corporation and the Collateral Trust Trustee shall have accepted and
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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 the Aggregate Redemption Price.
(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
1996 Refunding Note specified in the Consent shall have been fulfilled.
(v) The Collateral Trust Trustee shall have executed and
delivered a Consent and Directive (delivered in its capacity as
assignee and pledgee of Funding Corporation and as holder of all Notes)
pursuant to which, among other things, it (1) consents to Section 10
hereof, (2) consents and agrees to an amendment to the Extension Letter
to reflect the amendment to the Participation Agreement set forth in
Section 10 hereof and (3) directs the Indenture Trustee to execute and
deliver the 1996 Note Supplement.
(vi) The parties shall have received a favorable opinion of
counsel from Xxxxxxx & XxXxxx, 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.
(vii) The parties shall have received a favorable opinion of
counsel from Winthrop, Stimson, Xxxxxx & Xxxxxxx, 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.
(viii) 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,
Xxxxxx & Xxxxxxx dated the Closing Date and in the form of Exhibit E.2
hereto.
(ix) 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.
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
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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 1996 Note
Supplement, the 1996 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
1996 Note Supplement and consents to such execution and delivery.
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 Participation Agreement.
Section 10(b)(3)(ix) of the Participation Agreement (as
amended by Section 2(b) of Amendment No. 1 dated as of July 15, 1986 to the
Participation Agreement) is hereby amended and restated in its entirety as
follows:
"(ix) Notes and Bonds. Except with consent of the Owner
Participant, the Lessee will not, and will not permit any of its
Affiliates to, (A) acquire any of the Notes or, (B) except in
connection with the selection of Bonds for redemption pursuant to the
Collateral Trust Indenture (in strict accordance with the provisions of
paragraph 3 of the commitment agreement dated the Refunding Date
between PNM and the Loan Participant relating to the Lease Obligation
Bonds
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Series 1986A or provisions (identical in all materials respects) of
other commitment letters relating to other series of Bonds), any of the
Bonds."
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 III 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. 3 to be duly executed by their respective officers
thereunto duly authorized.
PUBLIC SERVICE COMPANY
OF NEW MEXICO
By:/s/ Xxxxx X. Manzec
-------------------
Name: Xxxxx X. Manzec
Title: Treasurer
MFS LEASING CORP.
By:/s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Title: Treasurer
FIRST PV FUNDING CORPORATION
By:/s/ Xxxx x. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: President
THE CHASE MANHATTAN BANK, as Indenture
Trustee
By:/s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
as aforesaid
By:/s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
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SCHEDULE I to
Refunding Agreement No. 3
1. Name of Owner MFS Leasing Corp., a Delaware
Participant: corporation
2. Note to be Prepaid: 10.30% Non-Recourse Promissory
Note, Fixed Rate Series (Due
January 15, 2014), dated July
17, 1986
3. Amount to be Prepaid: $32,256,000
4. Prepayment Premium: $1,993,420.80
5. 1996 Refunding Note:
(i) Interest Rate: 10.30%
(ii) Principal
Amount: $32,256,000
(iii) Stated Maturity
of Principal: January 15, 2014
(iv) Interest
payable from: July 15, 1996
(v) Interest January 15 and July 15 in each
Payment Dates: year, commencing January 15,
1997
(vi) Principal As specified in Exhibit A to
Amortization: the 1996 Note Supplement
(vii) Optional As specified in Exhibit A to
Prepayment: the 1996 Note Supplement
(viii) Other terms: As specified in Exhibit A to
the 1996 Note Supplement
6. Purchase Price for $32,256,000 plus accrued
Refunding Note: interest from July 15, 1996.
7. Supplemental Rent
Payment: $1,993,420.80
8. Consent: Consent and Related Agreements
dated as of April 22, 1996
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Page I-1
Schedule II to
Refunding Agreement No. 3
PLEDGED LESSOR NOTES
TO BE PREPAID IN PART
Collateral Trust
Pledged Lessor Notes Reference
1. Non-Recourse Promissory Note, Series A Supplemental
Fixed Rate Series (Due Indenture, Schedule 2,
January 15, 2014), Item (2)(ix)
$34,605,000, dated July 17,
1986, 10.30%
2. Non-Recourse Promissory Note, Series B Supplemental
Fixed Rate Series (Due Indenture, Schedule 2,
January 15, 2015), Item (2)(iv)
$32,873,000, dated November
25, 1986, 10.15%
3. Non-Recourse Promissory Note, Series B Supplemental
Fixed Rate Series (Due Indenture, Schedule 2,
January 15, 2016), Item (2)(ix)
$71,610,000, dated November
25, 1986, 10.15%
4. Non-Recourse Promissory Note, Series B Supplemental
Fixed Rate Series (Due Indenture, Schedule 2,
January 15, 2016), Item (2)(xv)
$40,920,000, dated November
25, 1986, 10.15%
5. Non-Recourse Promissory Note, Series B Supplemental
Fixed Rate Series (Due Indenture, Schedule 2,
January 15, 2016), Item (2)(xviii)
$34,101,000, dated November
25, 1986, 10.15%
6. Non-Recourse Promissory Note, Unit 1 Supplemental
Fixed Rate Series (Due Indenture of Pledge,
January 15, 2015), Schedule 1, Item
$48,640,000, dated December (2)(iii)
17, 1986, 10.15%
7. Non-Recourse Promissory Note, Unit 2 Supplemental
Fixed Rate Series (Due Indenture of Pledge,
January 15, 2016), Schedule 1, Item
$23,229,000, dated December (2)(iii)
17, 1986, 10.15%
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Page II-1
Schedule III to
Refunding Agreement No. 3
ADDRESSES
1. Public Service Company of Xxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention of Secretary
2. MFS Leasing Corp.
0000 Xxx Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention of President
3. State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention of Corporate Trust Department
4. The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of Corporate Trustee Administration
5. First PV Funding Corporation
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention of President
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Page III-1
When Recorded, Return to: Xxxxxx X. Xxxxxxx
XXXXX & XXXXXX
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
1996 SUPPLEMENTAL INDENTURE
Dated as of September 27, 1996
To
TRUST INDENTURE, MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT OF RENTS
Dated as of December 16, 1985
between
STATE STREET BANK AND TRUST COMPANY, not
in its individual capacity, but solely
as Owner Trustee under a Trust
Agreement dated as of December 16,
1985 with MFS LEASING CORP.
and
THE CHASE MANHATTAN BANK (formerly known as "Chemical Bank"),
as Indenture Trustee
Original Indenture recorded December 31, 1985 as Instrument No.
85-623277, re-recorded April 17, 1986 as Instrument No. 86-
187652, and confirmed by document recorded April 25, 1986 as
Instrument No. 86-203240, and Supplemental Indenture No. 1
thereto dated as of July 15, 1986, recorded July 17, 1986 as
Instrument No. 86-367467 and Supplemental Indenture No. 2 thereto
dated as of November 18, 1986, recorded November 25, 1986, as
Instrument No. 86-650769, all in Maricopa County, Arizona
Recorder's Office.
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This 1996 SUPPLEMENTAL INDENTURE dated as of September 27, 1996 to
Trust Indenture, Mortgage, Security Agreement and Assignment Of Rents dated as
of December 16, 1985, 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 a Trust Agreement dated as of
December 16, 1985, between State Street, whose address is Xxx Xxxxxxxxxxxxx
Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, with MFS LEASING CORP., a
Delaware corporation (the Trust Agreement), and THE CHASE MANHATTAN BANK
(formerly known as "Chemical Bank"), a New York banking corporation (the
Indenture Trustee), whose address is 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Owner Trustee (as successor owner trustee to The First
National Bank of Boston, the owner trustee originally designated in and party to
the Trust Agreement) and the Indenture Trustee have entered into a Trust
Indenture, Mortgage, Security Agreement and Assignment of Rents dated as of
December 16, 1985 (as heretofore amended and supplemented, the Indenture)
pursuant to which the Owner Trustee has issued the Fixed Rate Notes;
WHEREAS, Section 3.5(1) of the Indenture provides, among other
things, that the Fixed Rate Notes may be refunded with, in whole or in part,
Additional Notes;
WHEREAS, Section 3.5(4) of the Indenture provides, among other
things, that the Owner Trustee and the Indenture Trustee may enter into
indentures supplemental to the Indenture for, among other things, the purpose of
establishing the terms, conditions and designations of Additional Notes;
WHEREAS, the Owner Trustee has received an authorization and
request from the Owner Participant to issue an Additional Note and, as a result,
the Owner Trustee desires to issue an Additional Note to effect a refunding of a
portion of the Fixed Rate Note due January 15, 2014 and to enter into this 1996
Supplemental Indenture to establish the terms, conditions and designations of
such Additional Note;
WHEREAS, Section 10.1(viii) of the Indenture provides that, without
the consent of Holders of the Notes Outstanding, the Indenture Trustee may, with
the written consent of the Owner Trustee, from time to time and at any time
execute a supplement to the Indenture in order to evidence the issuance of and
to provide the terms of Additional Notes;
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Page III-2
WHEREAS, the Owner Trustee desires to amend the Indenture as set
forth in Section 3 hereof;
WHEREAS, Section 10.2 of the Indenture provides that, upon receipt
of a Directive, the Indenture Trustee shall execute a supplement to the
Indenture as specified in such Directive; and
WHEREAS, the Indenture Trustee has received a Directive directing
it to execute this 1996 Supplemental Indenture;
NOW, THEREFORE, in consideration of the premises and of other good
and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 6. Definitions.
For purposes hereof, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in
Appendix A to the Indenture.
SECTION 7. Terms, Conditions and Designations of the Additional
Notes.
(a) The 1996 Refunding Note.
There is hereby created and established a separate series of Notes
of the Owner Trustee designated "Nonrecourse Promissory Note, 1996 Refunding
Series" herein referred to as the 1996 Refunding Note. The 1996 Refunding Note
shall be payable as to principal and bear interest on the principal amount
thereof as follows:
1996 Refunding Interest Rate Principal Amount
Note Due
January 15, 2014 10.30% $32,256,000
The 1996 Refunding Note shall bear interest on the principal amount thereof from
time to time Outstanding from the date thereof until paid at the rate of
interest set forth therein. The principal amount of the 1996 Refunding Note
shall be payable as set forth in Schedule 1 attached thereto. Installments of
interest on and principal of (and premium, if any, on) the 1996 Refunding Note
shall be due and payable on the dates specified in the 1996 Refunding Note. The
1996 Refunding Note shall be substantially in the form of Exhibit A hereto.
SECTION 8. Amendments.
(a) Amendment to Section 3.9(a).
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Page III-3
The following sentence is added at the end of Section 3.9(a) of the
Indenture:
"In the event that (in accordance with the applicable provisions of
a Note), the Owner Trustee determines to prepay a Note in part, the
Owner Trustee may apply the principal portion of such prepayment to
prepay such remaining installments of principal in such amounts as
the Owner Trustee shall identify in its notice of prepayment (such
notice of prepayment to be accompanied by an appropriately prepared
replacement Schedule I to the Note being prepaid)."
(b) Amendment to Section 3.9(c).
Anything in Section 3.9(c) of the Indenture and any provision of
any Note to the contrary notwithstanding, in the event of the prepayment of a
Note, (i) prior notice of such prepayment need not be given if the same Person
is both Indenture Trustee and the holder, assignee and pledgee of the Note to be
prepaid and (ii) any notice of optional prepayment may be made conditional upon
receipt by the Owner Trustee of funds sufficient to pay the prepayment price due
in connection with such prepayment.
(c) Amendment to Section 4.3.
Anything in Section 4.3 of the Indenture to the contrary
notwithstanding, at the request of the Owner Trustee, the Indenture Trustee
shall not destroy cancelled Notes but shall return the same marked "CANCELLED"
to the Owner Trustee.
(d) Amendment to Section 1.4.
Pursuant to Arizona Revised Statutes, Section 33-404, (i) the
beneficiary of the Trust Agreement is MFS Leasing Corp., a Delaware corporation
whose address is 0000 Xxx Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, Attention of President and (ii) the beneficiaries of this Indenture are
(A) Public Service Company of New Mexico, a New Mexico corporation whose address
is Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, Attention of Secretary, a
Holder of a Note, and (B)(1) First PV Funding Corporation, a Delaware
corporation whose address is Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention of President, and (2) by pledge and
assignment, the banking corporation also acting as indenture trustee hereunder
the address of which is set forth above, as their respective interests may
appear, each a Holder of a Note. Copies of the Trust Agreement and this
Indenture are available for inspection at the Indenture Trustee's Office.
SECTION 9. Miscellaneous.
(a) Effective Date of Supplemental Indenture.
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Page III-4
This 1996 Supplemental Indenture shall be and become effective upon
the execution hereof by the parties hereto.
(b) Counterpart Execution.
This 1996 Supplemental Indenture may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
(c) Execution as Supplemental Indenture.
This 1996 Supplemental Indenture is executed and shall be construed
as an indenture supplemental to the Indenture and, as provided in the Indenture,
this 1996 Supplemental Indenture forms a part thereof.
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Page III-5
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee
have each caused this 1996 Supplemental Indenture to be duly executed by their
respective officers thereunto duly authorized, all as of the date first set
forth above.
STATE STREET BANK AND TRUST COMPANY, not
in its individual capacity, but solely
as Owner Trustee under the Trust
Agreement dated as of December 16, 1985,
with MFS Leasing Corp.,
By /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
THE CHASE MANHATTAN BANK, as Indenture
Trustee,
By:/s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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Page III-6
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On the 27th day of September, 1996, before me personally came Xxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did acknowledge, depose
and say that he resides at ____________, Massachusetts; that he is an Assistant
Vice President of STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company described in and which executed the foregoing instrument; and that he
signed his name thereto on behalf of said trust company by authority of the
Board of Directors of such trust company.
---------------------------
Notary Public
[NOTARIAL SEAL] Term Expires:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of September, 1996, before me personally came
Xxxxxxxx Xxxxx, to me known, who, being by me duly sworn, did acknowledge,
depose and say that he resides at _________, New York; that she is a Vice
President of THE CHASE MANHATTAN BANK, a New York banking corporation, described
in and which executed the foregoing instrument; and that he signed his name
thereto on behalf of said corporation by authority of the Board of Directors of
such corporation.
---------------------------
Notary Public
[NOTARIAL SEAL] Term Expires:
[3][MFS-1]
