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As filed with the Securities and Exchange Commission on April 29, 2008
Registration No. 333-150024
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 2003
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PUBLIC SERVICE COMPANY
OF NEW MEXICO
(Exact
(Exact name of registrant as specified in its charter)
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New Mexico 85-0019030
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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| New Mexico | | | 85-0019030 |
| (State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2700
(Address,
(Address, including zip code, and telephone number, including area code, of registrant'sregistrant’s principal executive offices)
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JOHN R. LOYACK
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Patrick T. Ortiz, Esq.
Senior Vice President, General Counsel and Chief Financial Officer
PUBLIC SERVICE COMPANY OF NEW MEXICO
Alvarado Square
Secretary
Public Service Company of New Mexico
414 Silver Street SW
Albuquerque, New Mexico 87158
Tel:87102
Telephone: (505) 241-2700
241-2896
Fax: (505) 241-2368
E-mail: jloyack@pnm.com
(Name,
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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It is respectfully requested that the Commission send copies of all orders,
notices and communications
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Copies to:
CHARLES L. MOORE, ESQ. TIMOTHY MICHAEL TOY, ESQ.
KELEHER & MCLEOD, P.A. PILLSBURY WINTHROP LLP
414 Silver Avenue, S.W. One Battery Park Plaza
Albuquerque, New Mexico 87103 New York, New York 10004-1490
Tel: (505) 346-4646 Tel: (212) 858-1000
Fax: (505) 346-1345 Fax: (212) 858-1500
E-mail: clm@keleher-law.com E-mail: ttoy@pillsburywinthrop.com
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| Charles L. Moore, Esq. | | | Jill M. Webb, Esq. |
| Associate General Counsel | | | Troutman Sanders LLP |
| PNM Resources, Inc. | | | 1001 Haxall Point |
| Alvarado Square | | | Richmond, Virginia 23219 |
| Albuquerque, New Mexico 87158 | | | Tel. 804-697-1200 |
| Tel. 505-241-4935 | | | Fax. 804-698-5198 |
| Fax. 505-241-2393 | | |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement becomes effective as determined
by market conditions and other factors.
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statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
![[ ]](https://capedge.com/proxy/S-3A/0000950136-08-002184/ebox.gif){kind=small}
If any of the securities being registered on this Form are to bebeing offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
![[X]](https://capedge.com/proxy/S-3A/0000950136-08-002184/xbox.gif){kind=small}
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]______
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]_______
If If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securitiesdelivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. [ ]_______
CALCULATION OF REGISTRATION FEE
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Proposed maximum aggregate Amount of
Title of each class of to be registered offering price (1)(2) registration fee(3)
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Senior unsecured notes..........................................
Preferred stock.................................................
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Total $285,000,000 $23,056.50
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(1) Includes an indeterminate number or amountadditional classes of senior unsecured notes and
preferred stocksecurities pursuant to Rule 413(b) under the Securities Act, check the following box.
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The Registrant hereby amends this Registration Statement on such date or dates as may from timebe necessary to time be issued at indeterminate prices
provideddelay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in no event will the aggregate initial priceaccordance with Section 8(a) of all senior
unsecured notes and preferred stock sold under this registration statement
exceed $285,000,000. Also includes such additional principal amount of
senior unsecured notes, if any, issued with an original issue discount such
that the aggregate initial offering price of all such senior unsecured
notes discounted, together with the aggregate initial offering price of all
such other securities registered and issued hereunder, will not exceed
$285,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Pursuant to Rule 429 under the Securities Act of 1933 the prospectus
contained herein will be used as a combined prospectus and will relate to
an aggregate of $500,000,000 principal amount of securities, consisting of
(a) the $285,000,000 aggregate principal amount of securities being
registered hereby and (b) $215,000,000 aggregate principal amount of
securities that are as yet unsold that previously were registered under the
Company'sor until this Registration Statement on Form S-3 (No. 333-53367) that was
initially filed with the Commission on May 22, 1998. This Registration
Statement constitutes Post-Effective Amendment No. 1 to Registration
Statement No. 333-53367, which shall become effective concurrently with
this Registration Statement in accordance withon such date as the Commission, acting pursuant to Section 8(c)8(a), may determine.
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Table of
The information in this prospectus is not complete and may be changed. Public
Service Company of New MexicoThese securities may not sell these securitiesbe sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities andnor is it is
not solicitingseeking an offer to buy these securities in any jurisdictionstate where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 12, 2003
APRIL 29, 2008
PROSPECTUS
$500,000,000
$950,000,000
PUBLIC SERVICE COMPANY OF
NEW MEXICO
SENIOR UNSECURED NOTES
AND
PREFERRED STOCK
We may offer from time to time up to an aggregate of $500,000,000$950,000,000 of our securities.senior unsecured notes. We will provide specificspecify the principal amount of senior unsecured notes being offered and the underwriters for the offering, together with the terms ofand conditions for such offering, the public offering price, the underwriting discounts and commissions and our securities, including
their offering prices,net proceeds from the sale thereof, in supplements to this prospectus. The supplements may
also add, update or change information contained in this prospectus. You should read thisboth the prospectus and any supplementsthe applicable prospectus supplement carefully before you invest.
We may offer these securities directly or through underwriters, agents
or dealers. The supplements to this prospectus will describe the terms of any
offering of these securities, including any underwriting arrangements. See also
"Plan of Distribution" on page 16 of this prospectus.
Our principal executive offices are located at Alvarado Square, Albuquerque, New Mexico, 87158 and our telephone number is (505) 241-2700.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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Investing in our senior unsecured notes involves risk. See ‘‘Risk Factors’’ on page 1.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
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The date of this prospectus is _________, 2003.
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Table of Contents
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission, or SEC, using a "shelf"‘‘shelf’’ registration process. Under this shelf registration process, we may sell the
securities or combinations of the securities described in this prospectus in one or more offerings up to a total dollar amount of $500,000,000.$950,000,000. This prospectus provides you with a general description of the securities that we may offer. Each time we offer any of the securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading "Where‘‘Where You Can Find More Information."
’’
For more detailed information about the securities, you can read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or with our other SEC filings incorporated by reference in the registration statement.
We are not offering the senior unsecured notes in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of each of those documents.
Unless otherwise indicated or unless the context otherwise requires, all references in this prospectus to "PNM"‘‘PNM’’, "we"‘‘we’’, "our"‘‘our’’, "us"‘‘us’’, or similar references mean Public Service Company of New Mexico and all of its subsidiaries.
RISK FACTORS
Investing in our senior unsecured notes involves risk. Before you invest in our senior unsecured notes, you should carefully consider the risks set forth in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2007, which is incorporated by reference in this prospectus. See also ‘‘Where You Can Find More Information’’ about future filings which we will make with the SEC, some of which may contain additional risk factors, and are incorporated by reference into this prospectus. If any of the risks actually occurs, our business, financial condition, results of operations and cash flows could be harmed.
PUBLIC SERVICE COMPANY OF NEW MEXICO
We are a public serviceutility company that was organized under the laws of the State of New Mexico on May 9, 1917. We are aan integrated public utility with regulated operations primarily engaged in the generation, transmission distribution, sale and marketingdistribution of electricity, transmission and in the transmission, distribution and sale of natural gas, withinand unregulated operations primarily focused on the State of New Mexico.
Our utility operations include electric servicessale and gas services.
Electric services consist of the distribution, transmission and generationmarketing of electricity for retail electric customers in New Mexico. Gas services include
the transportation and distribution of natural gas to end users. Our wholesale
operations consist of the generation and sale of electricity into the wholesale
market based on three product lines which are long-term contracts, forward sales
and short-term sales.
Upon the completion ofwestern United States. PNM is a one-for-one share exchange between us and PNM
Resources, Inc. on December 31, 2001, we became a wholly ownedwholly-owned subsidiary of PNM Resources, Inc. (‘‘PNMR’’), an investor-owned holding company of energy and energy-related businesses.
Our executive offices are located at Alvarado Square, Albuquerque, New Mexico 87158, and our telephone number is (505) 241-2700.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports and other information with
the SEC. These SEC filings are available over the Internet at the SEC's web site
at http://www.sec.gov. You may also read and copy any document we file at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information on the
Public Reference Room and their copy charges. You may also inspect our SEC
reports and other information at the New York Stock Exchange, 20 Broad Street,
New York, New York 10005. We also maintain a website at www.pnm.com. Information
contained on our website does not constitute part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
the information we file separately with it, which means we may disclose
important information by referring you to those other documents. The information
we incorporate by reference is considered to be part of this prospectus. Any
future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, or the Exchange Act, until we
sell all of these securities will automatically update, replace and supersede
the information contained in this prospectus and in previously filed documents
incorporated by reference in this prospectus. This prospectus incorporates by
reference those future filings as well as the following documents that we have
filed previously with the SEC:
- - Annual Report on Form 10-K for the year ended December 31, 2002, as
updated by financial information included in the Current Report on Form
8-K filed June 12, 2003.
- - Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
- - Current Reports on Form 8-K dated April 10, 2003, April 22, 2003, May
29, 2003 and June 12, 2003.
You may request a copy of any of these this filings at no cost by
writing or telephoning us at the following address:
Public Service Company of New Mexico
c/o PNM Resources, Inc.
Investor Relations
Alvarado Square
Albuquerque, New Mexico 87158
(505) 241-2477
You should rely only on the information contained in, or incorporated
by reference in, this prospectus and any prospectus supplement. We have not, and
any underwriters, agents or dealers have not, authorized anyone else to provide
you with different information. We are not, and any underwriters, agents or
dealers are not, making an offer of these securities or soliciting offers to buy
these securities in any state where the offer or solicitation is not permitted.
You should not assume that the information contained in this prospectus and any
prospectus supplement is accurate as of any date other than the date on the
front of such document or that the information incorporated by reference in this
prospectus is accurate as of any date other than the date of the document
incorporated by reference.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for
the periods indicated:
Three Months
Year Ended December 31, Ended
2002 2001 2000 1999 1998 March 31, 2003
2.13 3.65 3.05 2.40 2.19 1.64
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RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table shows our ratio of earnings to combined
fixed charges and preferred stock dividends for the periods indicated:
Three Months
Year Ended December 31, Ended
2002 2001 2000 1999 1998 March 31, 2003
2.12 3.63 3.03 2.38 2.18 1.63
USE OF PROCEEDS
Except as may otherwise be set forth in a prospectus supplement, the proceeds from the sale of these securitiessenior unsecured notes may be used to retire outstanding debt, to finance a portion of our capital expenditures and for other general corporate purposes.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for the periods indicated:
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| Year Ended December 31, | ||||||||||||||||||||||||
| 2007 | | | 2006 | | | 2005 | | | 2004 | | | 2003 | ||||||||||||
| 1.42 | | | | | 2.33 | | | | | | 1.80 | | | | | | 2.94 | | | | | | 2.01 | |
Our ratio of earnings to fixed charges is computed by dividing our earnings by our fixed charges. For the purposes of such computations:
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| • | earnings consist of earnings from continuing operations before income taxes plus fixed charges, less capitalized interest; |
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| • | fixed charges consist of the continuing operations portions of interest expensed and capitalized, amortization of debt discount, premium and capitalized expenses related to indebtedness and estimated interest costs within rental expense; and |
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| • | our natural gas operations are treated as discontinued operations for financial reporting and, accordingly, the earnings and portions of the fixed charges attributable to our natural gas operations are excluded from the ratio of earning to fixed charges. |
DESCRIPTION OF SENIOR UNSECURED NOTES
GENERAL
General
The following description sets forth certain general terms and provisions of our senior unsecured notes, or SUNs. When we offer SUNs in the future, a prospectus supplement will explain the particular terms of those SUNs, and the extent to which any of these general provisions will not apply.
The SUNs will be our unsecured and unsubordinated obligations ranking equally with all of our existing and future unsecured and unsubordinated obligations. We may issue the SUNs from time to time in one or more series, under the indenture dated as of August 1, 1998 between us and The Bank of New York Trust Company, N.A. (as successor to JPMorgan Chase Bank, formerly knownN.A.), as The Chase Manhattan Bank (Trustee)trustee (the Trustee). This indenture, as it may be amended and supplemented from time to time, is referred to in this prospectus as the Indenture.
We have summarized selected provisions of the Indenture below. You should read this summary together with the Indenture, and the officer's
certificatesany supplemental indentures or other documents establishing the SUNs for a complete understanding of the provisions that may be important to you. You should also read this prospectus and any applicable prospectus supplement before you make any investment decision. The following descriptions of the SUNs and the Indenture are qualified by reference to the Indenture, which is filed as an exhibit to the registration statement of which this prospectus is a part. References to certain sections of the Indenture are included in parentheses. Whenever particular provisions or defined terms in the Indenture are referred to under this "Description‘‘Description of Senior Unsecured Notes,"’’ such provisions or defined terms are incorporated by reference herein. The Indenture is qualified under the Trust Indenture Act of 1939. You should refer to the Trust Indenture Act of 1939 for provisions that apply to the SUNs.
The Indenture provides that the applicable SUNs will be issued in one or more series, may be issued at various times, may have differing maturity dates and may bear interest at differing rates. We need not issue all SUNs of one series at the same time and, unless otherwise provided, we may reopen a series, without the consent of the holders of the SUNs of that series for issuances of additional SUNs of that series.
The prospectus supplement relating to any series of SUNs being offered will include specific terms relating to that offering. These terms will include any of the following terms that apply to that series:
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| • | the title of the SUNs; |
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| • | the total principal amount of the SUNs; |
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| • | the person or persons to whom interest payments are made, if other than the registered holder; |
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| • | the date or dates on which the principal of the SUNs will be payable, how the dates will be determined; |
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| • | the rate or rates at which the SUNs will bear interest, if any, and how the rate or rates will be determined; |
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| • | the date or dates from which interest on the SUNs will accrue, the interest payment dates on which interest will be paid, and the record dates for the interest payments; |
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| • | the right, if any, to extend the interest payment periods for the SUNs and the duration of the extension; |
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| • | the place or places at which or methods by which payments will be made; |
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| • | whether we have the option to redeem the SUNs and, if so, the terms of our redemption option; |
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| • | any sinking fund or other provisions or options held by holders of the SUNs that would obligate us to repurchase or otherwise redeem the SUNs; |
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| • | if the SUNs will be issued in denominations other than $1,000 and integral multiples thereof; |
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| • | any index or formula used for determining principal, premium or interest; |
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| • | the currency or currencies in which payments will be made if other than United States dollars, and the manner of determining the equivalent of those amounts in United States dollars; |
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| • | if payments may be made on any of the SUNs, at our election or at the holder’s election, in a currency or currencies other than that in which the SUNs are stated to be payable, then the currency or currencies in which those payments may be made, the terms and conditions of the election and the manner of determining those amounts; |
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| • | the portion of the principal payable upon acceleration of maturity, if other than the entire principal; |
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| • | if the principal payable on the maturity date will not be determinable on one or more dates prior to the maturity date, the amount which will be deemed to be such principal amount as of any such date or the manner of determining such amount; |
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| • | whether the provisions described below under ‘‘Discharge, Defeasance and Covenant Defeasance’’ will apply to the SUNs; |
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| • | whether the SUNs will be issuable as global securities and, if so, the securities depositary; |
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| • | any changes or additions to the events of default under the Indenture or changes or additions to our covenants under the Indenture; and |
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| • | any other terms of the SUNs not inconsistent with the terms of the Indenture. |
(See Section 3.01)
All SUNs of any one series will be substantially identical except as to denomination and except as may otherwise be determined in the manner provided for in the Indenture. (See Section 3.01)
The SUNs are not secured by any property or assets and represent our unsecured debt obligations. As discussed below under " -‘‘— Restrictions on Liens and -— Restrictions on Sale and Lease-Back Transactions,"’’ the Indenture contains certain limitations on our ability to create liens and enter into sale and leaseback transactions. Such limitations do not afford holders of the SUNs protection in the event of a highly
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future unsecured and unsubordinated obligations. However, debt to capital requirements in certain of our financial instruments and regulatory agreements would limit the amount of additional debt we could issue.
SUNs may be sold at a substantial discount below their principal amount. You should consult the applicable prospectus supplement for a description of certain special United States federal income tax considerations which may apply to SUNs sold at an original issue discount or denominated in a currency other than United States dollars.
GLOBAL SUNS
Global SUNs
We may issue some or all of the SUNs as book-entry securities. Any such book-entry securities will be represented by one or more fully registered global securities. We will register each global security with or on behalf of a securities depositary identified in the applicable prospectus supplement. Each global security will be deposited with the securities depositary or its nominee or a custodian for the securities depositary.
As long as the securities depositary or its nominee is the registered holder of a global security representing SUNs, that person will be considered the sole owner and holder of the global security and the SUNs it represents for all purposes. Except in limited circumstances, owners of beneficial interests in a global security:
- - may not have the global security or any of the SUNs it represents
registered in their names;
- - may not receive or be entitled to receive physical delivery of
certificated SUNs in exchange for the global security; and
- - will not be considered the owners or holders of the global security or
any of the SUNs it represents for any purposes under the SUNs or the
Indenture.
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| • | may not have the global security or any of the SUNs it represents registered in their names; |
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| • | may not receive or be entitled to receive physical delivery of certificated SUNs in exchange for the global security; and |
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| • | will not be considered the owners or holders of the global security or any of the SUNs it represents for any purposes under the SUNs or the Indenture. |
We will make all payments of principal and any premium and interest on a global security to the securities depositary or its nominee as the holder of the global security. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of securities in definitive form. These laws may impair the ability to transfer beneficial interests in a global security.
Ownership of beneficial interests in a global security will be limited to institutions having accounts with the securities depositary or its nominee, which are called "participants"‘‘participants’’ in this discussion, and to persons that hold beneficial interests through participants. When a global security representing SUNs is issued, the securities depositary will credit on its book entry, registration and transfer system the principal amounts of SUNs the global security represents to the accounts of its participants. Ownership of beneficial interests in a global security will be shown only on, and the transfer of those ownership interests will be effected only through, records maintained by:
- - the securities depositary, with respect to participants' interests; and
- - any participant, with respect to interests the participant holds on
behalf of other persons.
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| • | the securities depositary, with respect to participants’ interests; and |
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| • | any participant, with respect to interests the participant holds on behalf of other persons. |
Payments to owners of beneficial interests held through participants will be the responsibility of those participants. The securities depositary may from time to time adopt various policies and procedures
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depositary'sdepositary’s or any participant'sparticipant’s records relating to beneficial interests in a global security representing SUNs, for payments made on account of those beneficial interests or for maintaining, supervising or reviewing any records relating to those beneficial interests:
- - PNM;
- - the Trustee; or
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| • | PNM; |
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| • | the Trustee; or |
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| • | an agent of either of them. |
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Redemption
We will set forth any terms for the redemption of the SUNs in a prospectus supplement. Unless we indicate differently in a prospectus supplement, the SUNs will be redeemable upon notice by mail to the holders between 30 and 60 days prior to the redemption date. If less than all of the SUNs of any series are to be redeemed, the Trustee will select the SUNs to be redeemed. In the absence of any provision for selection, the Trustee will choose a method of random selection that it deems fair and appropriate. (See Sections 11.03 and 11.04)
The SUNs will cease to bear interest on the redemption date. We will pay the redemption price and any accrued interest once the SUNs are surrendered for redemption. (See Section 11.06) If only part of a SUN is redeemed, the Trustee will deliver to you a new SUN of the same series for the remaining portion without charge. (See Section 11.07)
We may make any redemption, at our option, conditional upon the receipt by the paying agent or agents, on or prior to the date fixed for redemption, of money sufficient to pay the redemption price. If the paying agent or agents have not received the money by the date fixed for redemption, we will not be required to redeem the SUNs. (See Section 11.04)
PAYMENT
Payment
Except as may be provided in the prospectus supplement, interest, if any, on each SUN payable on each interest payment date will be paid to the person in whose name the SUN is registered as of the close of business on the regular record date for the interest payment date. Interest payable at maturity,
however, will be paid to the person to whom the principal is paid. If there has been a default in the payment of interest on any SUN, the defaulted interest may be paid to the holder of that SUN as of the close of business on a date to be fixed by the Trustee, which will be between 10 and 15 days prior to the date we proposed for payment of the defaulted interest, orand not less than 10 days after receipt by the Trustee of the notice of the proposed payment. The defaulted interest may also be paid in any other manner permitted by any securities exchange on which that SUN may be listed, if the Trustee finds it practicable. (See Section 3.07)
REGISTRATION OF TRANSFER AND EXCHANGE
Registration of Transfer and Exchange
Unless otherwise specified in a prospectus supplement, the transfer of the SUNs may be registered, and the SUNs may be exchanged for other SUNs of the same series, of authorized denominations and with the same terms and principal amount, at the corporate trust office of the Trustee. We may change the place for registration of transfer and exchange of the SUNs and may designate additional places for registration and exchange. Unless otherwise provided in the prospectus supplement, no service charge will be made for any transfer or exchange of the SUNs. However, we may require payment to cover any 6
- - any SUN during a period of 15 days prior to giving any notice of
redemption; or
- - any SUN selected for redemption except the unredeemed portion of any
SUN being redeemed in part.
(See
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| • | any SUN during a period of 15 days prior to giving any notice of redemption; or |
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| • | any SUN selected for redemption except the unredeemed portion of any SUN being redeemed in part. |
(See Section 3.05)
RESTRICTIONS ON LIENS
Restrictions on Liens
The Indenture provides that so long as any SUNs are outstanding, we will not issue, assume, or guarantee any Debt (as defined below) secured by any mortgage, security interest, pledge, or lien (Mortgage) of or upon any of our
stock or on any Operating Property (as defined below), owned as of the date of the Indenture or thereafter acquired, without also securing the outstanding SUNs (so long as the other Debt is so secured) equally and ratably with the Debt.
This limitation does not apply in the case of any Debt secured by:
- - Mortgages on any property or shares
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| • | Mortgages on any property existing at the time we acquired it; |
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| • | Mortgages on property of a corporation with which we consolidated or merged or which transfers or leases all or substantially all of its properties to us; |
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| • | Mortgages on property to secure all or part of the cost of acquiring, constructing, developing, or substantially repairing, altering, or improving the property, or to secure indebtedness incurred to provide funds for any of these purposes or for the reimbursement of funds previously expended for any of these purposes if created within a certain period; |
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| • | Mortgages in favor of the United States of America or any State thereof, or any department, agency, or instrumentality or political subdivision of the United States of America or any State thereof, or for the benefit of holders of securities issued by any such entity, to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of constructing, developing or substantially repairing, altering, or improving the property subject to such Mortgages; |
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| • | Mortgages on any property (x) which, at any time subsequent to January 1, 1985 through the date of the Indenture, was leased to us, or (y) pursuant to the terms of any lease to us in effect at any time subsequent to January 1, 1985 through the date of the Indenture, title to which would not have been vested in us (assuming that the lease remained in effect on the date of determination as the lease was in effect immediately prior to the date of the Indenture); |
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| • | the extension, renewal or replacement of any Mortgage referred to above; provided, however, that the principal amount of Debt so secured and not otherwise authorized by the previous clauses, shall not exceed the principal amount of Debt, plus any premium or fee payable in connection with any such extension, renewal, or replacement, so secured at the time of such extension, renewal, or replacement. |
Notwithstanding the foregoing, so long as any SUNs are outstanding, we may issue, assume, or guarantee Debt, or permit to exist Debt, secured by mortgages which would otherwise be subject to the foregoing restrictions up to an aggregate principal amount that, together with the principal amount of all of our other Debt, secured by mortgages (other than mortgages permitted by the Indenture that would otherwise be subject to the foregoing restrictions) and the Value (as defined below) of all Sale and Lease-
7
BackLease-Back Transactions (as defined below) in existence at such time (other than certain Sale and Lease-Back Transactions specified in the Indenture), does not exceed at the time the greater of ten percent (10%) of Net Tangible Assets (as defined below) or ten percent (10%) of Capitalization (as defined below).
(See
(See Section 10.05)
RESTRICTIONS ON SALE AND LEASE-BACK TRANSACTIONS
Restrictions on Sale and Lease-Back Transactions
The Indenture provides that so long as any SUNs are outstanding, we will not enter into any Sale and Lease-Back Transaction with respect to any Operating Property if the commitment by the purchaser was obtained more than 18 months after the later of (i) the completion of the acquisition, construction, or development of the Operating Property or (ii) the placing in operation of the Operating Property or of the Operating Property as constructed, developed, or substantially repaired, altered, or improved, unless:
- - we are entitled pursuant to the Indenture to issue, assume, or
guarantee Debt secured by a mortgage on such Operating Property without
equally and ratably securing the SUNs; or
- -
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| • | we are entitled pursuant to the Indenture to issue, assume, or guarantee Debt secured by a mortgage on such Operating Property without equally and ratably securing the SUNs; or |
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| • | we are entitled pursuant to the Indenture, after giving effect to the Sale and Lease-Back Transaction, to incur $1.00 of additional Debt secured by mortgages; or |
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| • | we apply or cause to be applied: |
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| • | in the case of a sale or transfer for cash, an amount equal to the net proceeds thereof (but not in excess of the net book value of the Operating Property at the date of sale or transfer), or, |
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| • | in the case of a sale or transfer otherwise than for cash, an amount equal to the fair value (as determined by our board of directors) of the Operating Property so leased, to |
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| the retirement, within 180 days after the effective date of the Sale and Lease-Back Transaction, of our Debt ranking senior to, or equally with, the SUNs. However, the amount to be applied to the retirement of Debt will be reduced by an amount equal to the principal amount, plus any premium or fee paid in connection with any redemption in accordance with the terms of Debt voluntarily retired by us within the 180-day period, excluding retirement pursuant to mandatory sinking fund or prepayment provisions and payments at maturity. |
(Section 10.10)
CERTAIN DEFINITIONS
Certain Definitions
The term "Capitalization,"‘‘Capitalization,’’ as used above, means the total of all the following items appearing on, or included in, our consolidated balance sheet: (i) liabilities for indebtedness maturing more than twelve (12) months from the date of determination; and (ii) any common stock, preferred stock, premium on capital stock, capital surplus, capital in excess of par value, and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of our capital stock held in our treasury.
The term "Debt,"‘‘Debt,’’ as used above, means any outstanding debt for money borrowed evidenced by notes, debentures, bonds, or other securities.
The term "Net‘‘Net Tangible Assets,"’’ as used above, means the amount shown as total assets on our consolidated balance sheet, less the following: (i) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents, and unamortized debt discount and expense and 8
The term "Operating‘‘Operating Property,"’’ as used above, means (i) any interest in real property owned by us and (ii) any asset owned by us that is depreciable in accordance with generally accepted accounting principles.
The term "Sale‘‘Sale and Lease-Back Transaction,"’’ as used above, means any arrangement with any entity providing for the leasing to us of any Operating Property (except for temporary leases for a term, including any renewal thereof, of not more than forty-eight (48) months), which Operating Property has been or is to be sold or transferred by us to such entity; provided, however, Sale and Lease-Back Transaction shall not include any arrangement (i) first entered into prior to the date of the Indenture and (ii) involving the exchange of any Operating Property for any property subject to an arrangement specified in the preceding clause (i).
The term "Value,"‘‘Value,’’ as used above, means, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (1) the net proceeds to us from the sale or transfer of the property leased pursuant to such Sale and Lease-Back Transaction or (2) the net book value of such property, as determined in accordance with generally accepted accounting principles by us at the time of entering into such Sale and Lease-Back Transaction, in either case multiplied by a fraction, the numerator of which shall be equal to the number of full years of the term of the lease that is part of such Sale and Lease-Back Transaction remaining at the time of determination and the denominator of which shall be equal to the number of full years of such term, without regard, in any case, to any renewal or extension options contained in such lease.
RESTRICTIONS ON MERGERS AND SALE OF ASSETS
Restrictions on Mergers and Sale of Assets
Under the terms of the Indenture, we may not consolidate with or merge into any other entity or convey, transfer or lease our properties and assets substantially as an entirety to any entity, unless:
- -
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| • | the surviving or successor entity is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and it expressly assumes our obligations on all SUNs and under the Indenture; |
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| • | immediately after giving effect to the transaction, no event of default and no event which, after notice or lapse of time or both, would become an event of default shall have occurred and be continuing; and |
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| • | we deliver to the Trustee, an officers’ certificate and an opinion of counsel as to compliance with the foregoing. |
(See Section 8.01)
Discharge, Defeasance and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
our obligations on all SUNs and under the Indenture;
- - immediately after giving effect to the transaction, no event of default
and no event which, after notice or lapse of time or both, would become
an event of default shall have occurred and be continuing; and
- - we deliver to the Trustee, an officer's certificate and an opinion of
counsel as to compliance with the foregoing.
(See Section 8.01)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Covenant Defeasance
The Indenture provides that we may be:
- - discharged from our obligations, with certain limited exceptions, with
respect to any series of SUNs, as described in the Indenture, such a
discharge being called a "defeasance" in this prospectus; and
- - released from our obligations under certain restrictive covenants
especially established with respect to any series of SUNs, including
the covenants described under "Restrictions on Liens" and
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"Restrictions on Sale-Leaseback Transactions" as described in the
Indenture, such a release being called a "covenant defeasance" in this
prospectus. (See Sections 13.02 and 13.03)
| | |
| • | discharged from our obligations, with certain limited exceptions, with respect to any series of SUNs, as described in the Indenture and any additional covenants set forth in the applicable prospectus supplement, such a discharge being called a ‘‘defeasance’’ in this prospectus; and |
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| • | released from our obligations under certain restrictive covenants especially established with respect to any series of SUNs, including the covenants described under ‘‘Restrictions on Liens’’ and ‘‘Restrictions on Sale-Leaseback Transactions’’ as described in the Indenture, such a release being called a ‘‘covenant defeasance’’ in this prospectus. (See Sections 13.02 and 13.03) |
We must satisfy certain conditions to effect a defeasance or covenant defeasance. Those conditions include the irrevocable deposit with the Trustee, in trust, of money or government obligations which through their scheduled payments of principal and interest would provide sufficient money to pay the principal and any premium and interest on those SUNs on the maturity dates of those payments or upon redemption. (See Section 13.04)
Under current United States
In addition, we will be required to deliver to the Trustee an opinion of counsel to the effect that the deposit and related defeasance or covenant defeasance will not cause the holders of the applicable series of SUNs to recognize gain or loss for federal income tax laws, a defeasancepurposes, and that such holders will be subject to federal income tax on the same amount, in the same manner and at the same times as would be treated as an exchange of the relevant SUNs in which holders of those SUNs
might recognize gaincase if such deposit and related defeasance or loss.covenant defeasance were not to occur. In addition, the amount, timing and character of
amounts that holders would thereafter be required to include in income might be
different from that which would be includible in the absence of that defeasance.
We urge investors to consult their own tax advisors as to the specific
consequencescase of a defeasance, includingthat opinion of counsel must be based upon a ruling from the applicability and effect of tax laws
other than United StatesInternal Revenue Service or a change in federal income tax laws. (See Section 13.04)
Under current United States federal income tax law, unless accompanied
by other changes in the termslaw.
Modification of the SUNs, a covenant defeasance should not be
treated as a taxable exchange.
MODIFICATION OF THE INDENTURE
Indenture
We and the Trustee may enter into one or more supplemental indentures without the consent of any holder of the SUNs for certain specified purposes, including:
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| • | to evidence the assumption by any permitted successor of our covenants in the Indenture and in the SUNs; |
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| • | to add to our existing covenants or to surrender any of our rights or powers under the Indenture; |
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| • | to add additional events of default; |
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| • | to add to or change any of the provisions to such extent necessary for the issuance of SUNs in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of SUNs in uncertificated form; |
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| • | to change, eliminate, or add any provision to the Indenture; provided, however, if the change, elimination, or addition will adversely affect the interests of the holders of the SUNs of any series in any material respect, that change, elimination, or addition will become effective only: |
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| • | when the consent of the holders of a majority in aggregate principal amount of the SUNs of that series has been obtained in accordance with the Indenture; or |
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| • | when no SUNs of the affected series remain outstanding under the Indenture; |
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| • | to secure the SUNs; |
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| • | to establish the form or terms of the SUNs of any other series as permitted by the Indenture; |
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| • | to evidence and provide for the acceptance of appointment of a successor trustee; |
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| • | to provide for or facilitate the administration of the trusts by more than one Trustee; |
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| • | to cure any ambiguity or inconsistency or to make any other provisions with respect to matters and questions arising under the Indenture; provided that the action will not adversely affect the interests of the holders of the SUNs of any series in any material respect. |
(See Section 9.01)
If the Trust Indenture Act of 1939 is amended after the date of the Indenture to require changes to the Indenture, the Indenture will be deemed to be amended so as to conform to that amendment of the Trust Indenture Act of 1939. We and the Trustee may, without the consent of any of the holders, enter into one or more supplemental indentures to evidence that amendment. (See Section 9.01)
The consent of the holders of a majority in aggregate principal amount of the SUNs of all series then outstanding, considered as one class, is required for all other modifications to the Indenture. However, if less than all of the series of SUNs outstanding are directly affected by a proposed supplemental indenture, then only the consent of the holders of a majority in aggregate principal amount of the outstanding SUNs of all series that are directly affected will be required. No amendment or modification may:
- - change the stated maturity of the principal of, or any installment of
principal of or interest on, any SUN, or reduce the principal amount of
any SUN or its rate of interest or change the method of calculating the
interest rate or reduce any premium payable upon redemption, or change
the currency in which payments are made, or impair the right to
institute suit for the enforcement of any payment on or after the
stated maturity of any SUN, without the consent of the holder;
- - reduce the percentage in principal amount of the outstanding SUNs of
any series which consent is required for any supplemental indenture or
any waiver of compliance with a provision of the Indenture or any
default thereunder and its consequences, or reduce the requirements for
quorum or voting, without the consent of all the holders of the series;
or
- - modify certain provisions of the Indenture relating to supplemental
indentures, waivers of certain covenants and waivers of past defaults
with respect to the SUNs of any series, without the consent of the
holder of each outstanding SUN affected thereby.
(See
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| • | change the stated maturity of the principal of, or any installment of principal of or interest on, any SUN, or reduce the principal amount of any SUN or its rate of interest or change the method of calculating the interest rate or reduce any premium payable upon redemption, or change the currency in which payments are made, or impair the right to institute suit for the enforcement of any payment on or after the date that any principal or interest is due and payable on any SUN, without the consent of the holder; |
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| • | reduce the percentage in principal amount of the outstanding SUNs of any series the consent of which is required for any supplemental indenture or any waiver of compliance with a provision of the Indenture or any default thereunder and its consequences, or reduce the requirements for quorum or voting, without the consent of all the holders of the series; or |
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| • | modify certain provisions of the Indenture relating to supplemental indentures, waivers of certain covenants and waivers of past defaults with respect to the SUNs of any series, without the consent of the holder of each outstanding SUN affected thereby. |
(See Section 9.02)
A supplemental indenture which changes the Indenture solely for the benefit of one or more particular series of SUNs, or modifies the rights of the holders of the SUNs of one or more series, will not affect the rights under the Indenture of the holders of the SUNs of any other series. (See Section 9.02)
The Indenture provides that the SUNs owned by us or anyone else required to make payment on the SUNs will be disregarded and considered not to be outstanding in determining whether the required holders have given a request or consent. (See Section 1.01)
We may fix in advance a record date to determine the required number of holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or other such act of the holders, in certain situations. If the record date is fixed, the holders of the outstanding SUNs of the relevant series on that record date, and no other holders, will be entitled to take or revoke the relevant action, whether or not those holders remain holders after that record date. No action, however, will be effective unless taken on or prior to the applicable expiration date by holders of the requisite principal amount of the outstanding SUNs of that series on that record date. Any request, demand, authorization, direction, notice, consent, election, waiver or other act of a holder will bind every future holder of the same SUNs and the holder of every SUN issued upon the registration of transfer of or in exchange of those SUNs. A transferee will be bound by our acts or those of the Trustee taken in reliance thereon, whether or not notation of that action is made upon that SUN. (See Section 1.04)
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EVENTS OF DEFAULT
"Event
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Events of Default
‘‘Event of default’’ when used in the Indenture with respect to any series of SUNs, means any of the following:
- - failure to pay interest on any SUN of the applicable series for 60 days
after it is due;
- - failure to pay the principal of or premium on any SUN of the applicable
series when due (whether at maturity or upon earlier redemption);
- - failure to pay the deposit of any sinking fund payment, when and as due
by the terms of the applicable series;
- - failure to perform any other covenant in the Indenture, other than a
covenant that does not relate to that series of SUNs, that continues
for 90 days after we receive written notice from the Trustee, or we and
the Trustee receive a written notice from the holders of a majority in
principal amount of the SUNs of such series; however, the Trustee or
the Trustee and such holders can agree to an extension of the 90-day
period and this extension will be automatic if we are diligently
pursuing action to correct the default;
- - certain events in bankruptcy, insolvency or reorganization of PNM; or
- - any other event of default provided with respect to the SUNs of that
series.
(See
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| • | failure to pay interest on any SUN of the applicable series for 60 days after it is due; |
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| • | failure to pay the principal of or premium on any SUN of the applicable series when due (whether at maturity or upon earlier redemption); |
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| • | failure to pay the deposit of any sinking fund payment, when and as due by the terms of the applicable series; |
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| • | failure to perform any other covenant in the Indenture, other than a covenant that does not relate to that series of SUNs, that continues for 90 days after we receive written notice from the Trustee, or we and the Trustee receive a written notice from the holders of a majority in principal amount of the SUNs of such series; however, the Trustee or the Trustee and such holders can agree to an extension of the 90-day period and this extension will be automatic if we are diligently pursuing action to correct the default; |
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| • | certain events in bankruptcy, insolvency or reorganization of PNM; or |
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| • | any other event of default provided with respect to the SUNs of that series. |
(See Section 5.01).
REMEDIES
Remedies
Acceleration of Maturity
If an event of default with respect to any one series of SUNs occurs and continues, either the Trustee or the holders of a majority in principal amount of the outstanding SUNs of that series may declare the principal amount of all the SUNs of that series to be due and payable immediately. However, if the event of default is applicable to more than one series of SUNs, the Trustee or the holders of a majority in principal amount of all the outstanding SUNs of all series, considered as one class, and not the holders of any one series, may make a declaration of acceleration. (See Section 5.02)
At any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee, the event of default giving rise to the declaration of acceleration will be considered waived, and the declaration and its consequences will be consideredautomatically rescinded and annulled, if:
- - we have paid or deposited with the Trustee a sum sufficient to pay:
- all overdue interest on all the SUNs of the series;
- the principal of and premium, if any, on any SUNs of
the series which have otherwise become due and
interest, if any, that is currently due;
- interest, if any, on overdue interest (to the extent
lawful); and
- all amounts due to the Trustee under the Indenture;
and
12
- - any other event of default with respect to the SUNs of that series has
been cured or waived as provided in the Indenture.
(See
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| • | we have paid or deposited with the Trustee a sum sufficient to pay: |
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| • | all overdue interest on all the SUNs of the series; |
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| • | the principal of and premium, if any, on any SUNs of the series which have otherwise become due and interest, if any, that is currently due; |
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| • | interest, if any, on overdue interest (to the extent lawful); |
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| • | all amounts due to the Trustee under the Indenture; and |
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| • | any other event of default with respect to the SUNs of that series has been cured or waived as provided in the Indenture. |
(See Section 5.02)
The holders of a majority in principal amount of the outstanding SUNs of any series may on behalf of the holders of all the SUNs of that series waive any past default under the Indenture with respect to that series and its consequences, except a default (i) in the payment of the principal of or any premium or interest on any SUN of that series, or (ii) in respect of a covenant or provision of the
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Indenture which cannot be modified or amended without the consent of the holder of each outstanding SUN of the series affected. However, if a default occurs and continues with respect to more than one series of SUNs, the holders of a majority in aggregate principal amount of the outstanding SUNs of all such series, considered as one class, hashave the right to waive the default, and not the holders of the SUNs of any one such series. Upon any waiver, the default ceases to exist, and any and all events of default arising therefrom is deemed to have been cured, for every purpose of the Indenture; but no waiver will extend to any subsequent or other default or impair any right consequent thereon. (See Section 5.13)
Right to Direct Proceedings
If an event of default with respect to any series of SUNs occurs and continues, the holders of a majority in principal amount of the outstanding SUNs of that series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the SUNs of that series. However, if an event of default occurs and continues with respect to more than one series of SUNs, the holders of a majority in aggregate principal amount of the outstanding SUNs of all such series, considered as one class, have the right to make the direction, and not the holders of the SUNs of any one of such series
and that (i) such direction will not be in conflict with any rule of law or with
the Indenture; (ii) the Trustee may take any other action deemed proper by the
Trustee and not inconsistent with direction, and (iii) subject to the provisions
ofseries. In either case, the Indenture the Trustee will have the right to decline to follow any
direction if the Trustee in good faith determines that the proceeding so
directed would involve the Trustee in personal liability. (Seefurther provides that:
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| • | such direction will not be in conflict with any rule of law or with the Indenture; |
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| • | the Trustee may take any other action deemed proper by the Trustee and not inconsistent with direction, and |
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| • | subject to the provisions of the Indenture the Trustee will have the right to decline to follow any direction if the Trustee in good faith determines that the proceeding so directed would involve the Trustee in personal liability. |
(See Section 5.12)
Limitation on Right to Institute Proceedings
No holder of SUNs of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy under the Indenture, unless:
- - the holder has previously given to the Trustee written notice of a
continuing event of default;
- - the holders of a majority in aggregate principal amount of the
outstanding SUNs of all series in respect of which an event of default
has occurred and is continuing, considered as one class, have made a
written request to the Trustee, and have offered reasonable indemnity
to the Trustee to institute proceedings; and
- - the Trustee has failed to institute any proceeding for 60 days after
notice and has not received any direction inconsistent with the written
request of the holders during that period.
(See
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| • | the holder has previously given to the Trustee written notice of a continuing event of default; |
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| • | the holders of a majority in aggregate principal amount of the outstanding SUNs of all series in respect of which an event of default has occurred and is continuing, considered as one class, have made a written request to the Trustee; |
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| • | such holder or holders have offered reasonable indemnity to the Trustee to institute proceedings; and |
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| • | the Trustee has failed to institute any proceeding for 60 days after notice and has not received any direction inconsistent with the written request of the holders during that period. |
(See Section 5.07)
No Impairment of Right to Receive Payment
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The limitations on the right to institute proceedings, however, do not apply to a suit by a holder of a SUN for payment of the principal of or premium, if any, or interest if any, on that SUN on or after the applicable due date. (See Section 5.08)
Annual Notice to Trustee
We will provide to the Trustee an annual statement by an appropriate officer as to whether we are in default in the performance and observance of any of the terms, provisions and conditions of the Indenture. (See Section 10.04)
NOTICES
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Notices
Notices to holders of the SUNs will be given by mail to the holders at the addresses that appear in the security register. (See Section 1.06)
TITLE
Title
We, the Trustee, and any of our agents or the agents of the Trustee, may treat the person in whose name the SUNs are registered as the absolute owner thereof, whether or not such SUNs may be overdue, for the purpose of making payments and for all other purposes irrespective of notice to the contrary. (See Section 3.08)
GOVERNING LAW
Governing Law
The Indenture and the SUNs are governed by, and construed in accordance with, the laws of the State of New York. (See Section 1.12)
REGARDING THE TRUSTEE
Regarding the Trustee
The Trustee is The Bank of New York Trust Company, N.A. (as successor to JPMorgan Chase Bank, formerly known as The Chase
Manhattan Bank.N.A.). In addition to acting as Trustee, JPMorgan ChaseThe Bank acts,of New York Trust Company, N.A. and its affiliates act, and may act, as trustee under our and our affiliates'affiliates’ other various indentures and trusts. JPMorgan Chase BankWe and our affiliates also participates in our revolvingmaintain credit facility
and liquidity facilities and conduct other banking transactions with affiliates of JPMorgan Chase Bank are lessorsthe Trustee in the ordinary course of our businesses. In addition, an affiliate of the Trustee is the owner participant with respect to three of our
leases relating to the sale and leaseback of portions of Unit 1 and Unit 2 of
the Palo Verde Nuclear Generating Station.
Station which are subject to sale and leaseback financing agreements.
The Trustee may resign at any time by giving us written notice or be removed at any time by an act of the holders of a majority in principal amount of any series of SUNs then outstanding delivered to the Trustee and PNM. In addition, provided that no event of default has occurred or is continuing, we may appoint a new trustee upon delivering to the Trustee, a resolution of our board of directors appointing a successor trustee and the successor'ssuccessor’s acceptance of our appointment. In this case, the Trustee will be deemed to have resigned and the successor will be deemed to have been appointed as trustee in accordance with the Indenture. In any event, the resignation or removal of the Trustee, and no appointment of a successor trustee, will be effective until the acceptance of appointment by a successor trustee. (See Section 6.10)
The Trustee will perform only those duties that are specifically set forth in the Indenture unless an event of default under the Indenture occurs and continues. In case an event of default occurs and continues, the Trustee will exercise the same degree of care and skill as a prudent individual would exercise in the conduct of his or her own affairs. (See Section 6.01)
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DESCRIPTION
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PLAN OF PREFERRED STOCK
The following descriptions of our capital stock and the relevant
provisions of our Restated Articles of Incorporation and By-Laws are summaries
and are qualified by reference to our Restated Articles of Incorporation and
By-Laws which have been previously filed with the SEC and are exhibits to the
registration statement of which this prospectus is a part. The following also
summarizes certain applicable provisionsDISTRIBUTION
We may sell SUNs, in or outside of the New Mexico Business Corporation
Act and the New Mexico Public Utility Act and those summaries are qualified by
referenceUnited States, to those Acts.
OUR CAPITAL STOCK, GENERALLY
Our authorized capital stock consistsunderwriters or dealers, through agents, directly to purchasers or through a combination of 10,000,000 shares of preferred
stock, without par value, issuable in series from time to time, and 40,000,000
shares of common stock, without par value. As of May 31, 2003, our only series
of outstanding preferred stock is our Cumulative Preferred Stock, 1965 Series,
4.58%, of which 128,000 shares are outstanding. All of our common stock is
currently held by PNM Resources.
PREFERRED STOCK
Our board of directors is authorized by resolution to provide from time
to time for the issuance of shares of preferred stock in series and to fix, from
time to time before issuance, the designation, preferences, privileges and
voting powers of the shares of each series of preferred stock and its
restrictions or qualifications, limited to the following:
- - the serial designation, authorized number of shares and the stated
value;
- - the dividend rate, if any, the date or dates on which the dividends
will be payable, and the extent to which the dividends may be
cumulative;
- - the price or prices at which shares may be redeemed, and any terms,
conditions and limitations upon any redemption;
- - the amount or amounts to be received by the holders in the event of
dissolution, liquidation, or winding up of our assets;
- - any sinking find provisions for redemption or purchase of shares of any
series;
- - the terms and conditions, if any, on which shares may be converted
into, or exchanged for, shares of other series of preferred stock of
the corporation, but may not be converted into, or exchanged for,
shares of our common stock;
- - the voting rights, if any, for the shares of each series, limited to
circumstances when:
- we fail to pay dividends on thethese methods. The applicable series; and
- when a proposed amendment to our Restated Articles of
Incorporation would have an adverse impact on the rights and
privileges of our preferred stockholders.
The holders of our preferred stock do not have a preemptive right to
acquire authorized but unissued shares, securities convertible into shares or
carrying a right to subscribe to or acquire shares, except under the terms and
conditions as may be provided by our board of directors.
15
A prospectus supplement will describecontain specific information relating to the terms of any preferred stock
being offered,the offering, including, whether the preferred stock will be listed on any
securities exchange.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements made in this prospectus and other documents we file with the
SEC that relate to future events or our expectations, projections, estimates,
intentions, goals, targets and strategies are made pursuant to the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
based upon current expectations and estimates and we assume no obligation to
update this information. Because actual results may differ materially from those
expressed or implied by the forward-looking statements, we caution investorsextent not to place undue reliance on these statements. Factors that could cause actual
results to differ, and that will affect our future financial condition, cash
flow and operating results include interest rates, weather, fuel costs, changes
in supply and demandotherwise included in the market for electric power, wholesale power prices,
market liquidity, the competitive environment in the electric and natural gas
industries, the performance of generating units and transmission system, state
and federal regulatory and legislative decisions and actions, the outcome of
legal proceedings and the performance of state, regional and national economies.
For a detailed discussion of the important factors that affect us and that could
cause actual results to differ from those expressed or implied by our
forward-looking statements, please see "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in our current and future Annual
Reports on Form 10-K and Quarterly Reports on Form 10-Q, and also our current
and future Current Reports on Form 8-K, filed with the SEC.
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus in one
or more series in any of three ways: (1) through underwriters or dealers; (2)
through agents; or (3) directly to a limited number of purchasers or to a single
purchaser.
THROUGH UNDERWRITERS OR DEALERS
prospectus:
| | |
| • | the name or names of any underwriters or agents; |
| | |
| • | the purchase price of the SUNs; |
| | |
| • | our net proceeds from the sale of the SUNs; |
| | |
| • | any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; and |
| | |
| • | any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers. |
By Underwriters
If underwriters are used in the sale, the offered securitiesSUNs will be acquired by the underwriters for their own account andaccount. Underwriters may be resold from time
to timeoffer the SUNs directly or through underwriting syndicates represented by one or more managing underwriters. The underwriters may resell the SUNs in one or more transactions, including negotiated transactions, at the
initiala fixed public offering price, which may be changed, or at varying prices determined at the time of the
sale. The offered securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more managing underwriters. The underwriter or underwriters
with respect to offered securities will be named in the prospectus supplement
relating to the offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover page of the
prospectus supplement. Unless otherwise set forth in the prospectus supplement,
the obligations of the underwriters to purchase the offered securitiesSUNs will be subject to some conditions precedent, and the underwriters will be obligated to
purchase all of the offered securities if any are purchased.
THROUGH AGENTS
Offered securities may be sold through agents designated by us from
time to time. A prospectus supplement will set forth the name of any agent
involved in the offer or sale of the offered securities for which the prospectus
supplement is delivered as well as any commissions that we will pay to that
agent. Unless otherwise indicated in the prospectus supplement, that agent will
be acting on a reasonable best efforts basis for the period of its appointment.
16
DIRECTLY
We may sell the offered securities directly to one or more purchasers.
In this case, no underwriters or agents would be involved.
GENERAL INFORMATIONcertain conditions. The prospectus supplement with respect to the offered securities will
set forth the terms of the offering of the offered securities, including:
- - the name or names of any underwriters, dealers or agents;
- - the purchase price of the offered securities and the proceeds to us
from their sale;
- - any underwriting discounts, agents' commissions and other items
constituting underwriting compensation;
- - any initial public offering price; and
- - any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions allowed or reallowedre-allowed or paid to dealers may be changed from time to time.
By Dealers
If so indicateddealers are used in the sale, unless otherwise specified in the applicable prospectus supplement, with respectwe will sell the SUNs to the offered securities,dealers as principals. The dealers may then resell the SUNs to the public at varying prices to be determined by the dealers at the time of resale. The applicable prospectus supplement will contain more information about the dealers, including the names of the dealers and the terms of our agreement with them.
By Agents and Direct Sales
We may sell the SUNs directly to the public, without the use of underwriters, dealers or agents. We may also sell the SUNs through agents we designate from time to time. The applicable prospectus supplement will contain more information about the agents, including the names of the agents and any commission we agree to pay the agents.
We also may authorize agents, underwritersengage a broker-dealer from time to time to act as agent or dealersprincipal for the offer of our SUNs in one or more placements pursuant to a distribution agreement. If we and the broker-dealer agree, we will sell to the broker-dealer as agent or as principal, and the broker-dealer will seek to solicit offers by certain specified institutions to purchase on an agency basis and/or will purchase on a principal basis, our SUNs. The amount and purchase price (less an underwriting discount) of the offeredSUNs we sell to the broker-dealer will be mutually agreed on the relevant trading day. The SUNs sold under the distribution agreement will be sold at prices related to the prevailing market price for such securities, and therefore exact figures regarding the price, proceeds that will be raised or commissions to be paid will be described in a prospectus supplement to this prospectus or in other filings made in accordance with and as permitted by the Securities Act of 1933, as amended (the ‘&lsquo ;Securities Act’’) and the Exchange Act. The broker-dealer may make sales of our SUNs pursuant to the distribution agreement in privately negotiated transactions and/or any other method permitted by law deemed to be an ‘‘at-the-market’’ offering as defined in Rule 415 promulgated under the Securities Act including sales made on the New York Stock Exchange, the current trading market for our debt securities.
General Information
Underwriters, dealers and agents that participate in the distribution of the SUNs may be deemed underwriters as defined in the Securities Act, and any discounts or commissions we pay to them and
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any profit made by them on the resale of the SUNs may be treated as underwriting discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation from us at the initial public offering price set forthwill be described in the applicable prospectus supplement
pursuantsupplement.
We may agree with the underwriters, dealers and agents to delayed delivery contracts providing for payment and delivery on a
specified date in the future. These contracts will be subject to the conditions
set forth in the prospectus supplement, which will also set forth the commission
payable for solicitation of the contracts.
Agents, underwriters and dealers may be entitled under agreements
entered into with us to indemnification by usindemnify them against certain civil liabilities, including certain liabilities under the Securities Act, of 1933, or to contribution by uscontribute with respect to payments which thosethe underwriters, dealers or agents underwriters and
dealers may be required to makemake.
Underwriters, dealers and agents may be customers of, engage in transactions with or perform services for, us in the ordinary course of their businesses.
LEGAL MATTERS
The legality of the SUNs in respect thereof.
of which this prospectus is being delivered will be passed upon for us by Charles L. Moore, Esq., Associate General Counsel, and Troutman Sanders LLP, who will also pass on certain other legal matters. As of February 29, 2008, Charles L. Moore, Esq. held options to acquire 13,000 shares of PNMR common stock (7,326 of which were exercisable). Counsel for any underwriters will render an opinion as to certain legal matters relating to the SUNs for any underwriters, dealers, purchasers or agents.
EXPERTS
The consolidated financial statements and the related financial statement schedules, incorporated in this prospectus by reference from the Company's Currentour Annual Report on Form 8-K dated June 12, 200310-K for the year ended December 31, 2007, and the effectiveness of PNM’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent auditors,registered public accounting firm, as stated in their reports, which are incorporated herein by reference (which reports (1) express an unqualified opinion and include explanatory paragraphs referring toregarding the
realignment of segments for financial reporting purposes and its adoption of EITF 02-3, Issues Involved in Financial Accounting Standards Board Financial Interpretation No. 47, Accounting for Derivative Contracts HeldConditional Asset Retirement Obligations in 2005, Statement of Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment and Statement of Financial Accounting Standards No. 158, Employers’ Accounting for Trading PurposesDefined Benefit Pension and Contracts InvolvedOther Postretirement Plans — an amendment of FASB Statements No. 87, 88, 106, and 132R in Energy Trading2006, and Risk Management
Activities)the adoption of Financial Accounting Standards Board Financial Interpretation No. 48, Accounting for Uncertainty in Income Taxes in 2007) and (2) express an unqualified opinion on the effectiveness of internal control over financial reporting). TheSuch financial statements and financial statement schedules have been so incorporated in reliance upon the reports of such firm given upon their authority a s experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
PNM files annual, quarterly and special reports and other information with the SEC. You may read and copy these documents at the SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the Public Reference Room. The SEC also maintains an Internet website that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The address of the site is www.sec.gov.
PNM’s Internet address is www.pnm.com. The contents of the website are not a part of the registration statement of which this prospectus is a part. PNM’s filings with the SEC, including annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports, filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, are accessible free of charge at PNMR’s website at http://www.pnmresources.com as soon as reasonably practicable after PNM electronically files such material with, or furnishes it to, the SEC. These reports are also available upon request in print from us free of charge.
PNM is ‘‘incorporating by reference’’ in this prospectus information PNM files with the SEC, which means that PNM is disclosing important information to you by referring you to those documents. Our combined filings with the SEC present separate filings by PNMR, PNM and Texas-New Mexico Power Company (‘‘TNMP’’), a wholly-owned subsidiary of PNMR. Information contained therein relating to an individual registrant is filed by that registrant on its own behalf and each registrant makes no representation as to information relating to other registrants. The information PNM incorporates by reference is considered to be part of this prospectus, unless PNM updates or supersedes that information by the information contained in this prospectus or the information PNMR files subsequently with the SEC that is incorporated by reference in this prospectus fromor a prospectus supplement. PNM is incorporating by reference the Company'sfollowing documents that it has filed with the SEC (except those portions of filings that relate to PNMR or TNMP as separate registrants), other than any information in these documents that is deemed not to be ‘‘filed’’ with the SEC:
| | |
| • | PNM’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007 as filed on February 29, 2008; |
| | |
| • | PNMR’s Proxy Statement on Schedule 14A as filed on April 28, 2008; and |
| | |
| • | PNM’s Current Reports on Form 8-K as filed on January 17, 2008 and March 11, 2008. |
PNM also incorporates by reference into this prospectus any filings PNM makes with the SEC (excluding information furnished under Items 2.02 or 7.01 of Current Reports on Form 10-K (as
updated by the Company's Current Report on Form 8-K dated June 12, 2003) have
been audited by Deloitte & Touche, LLP, independent auditors, as stated in their
report which is incorporated herein by reference.
The aforementioned reports have been so incorporated and included in
reliance upon such firm given their authority as experts in accounting and
auditing.
With respect to the unaudited interim financial information for the
periods ended March 31, 2003 and 2002, which is incorporated herein by
reference, Deloitte & Touche LLP have applied limited procedures in accordance
with professional standards for a review of such information. However, as
stated in their
17
reports included in the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003 and incorporated by reference herein, they did not audit
and they do not express an opinion on that interim financial information (which
review report includes an explanatory paragraph related to the Company's
adoption of Statement of Financial Accounting Standards No. 143, Accounting for
Asset Retirement Obligations). Accordingly, the degree of reliance on their
reports on such information should be restricted in light8-K) under Sections 13(a), 13(c) or 15(d) of the limited nature
ofExchange Act, after the review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those reports are
not "reports" or a "part"initial filing of the registration statement prepared or certified by
an accountant within the meaningthat contains this prospectus and before termination of Sections 7 and 11this offering.
You may obtain without charge a copy of any of the Securities
Act.
VALIDITY
The validitydocuments PNM incorporates by reference, except for exhibits to such documents which are not specifically incorporated by reference into such documents, by contacting us at Public Service Company of the offered securities will be passed upon for us by
Keleher & McLeod, P.A.,New Mexico, Alvarado Square, Albuquerque, New Mexico, and, for any underwriters,
dealers or agents by Pillsbury Winthrop LLP, New York, New York. In giving their
opinions, Keleher & McLeod, P.A.87158, Attention: Investor Relations. You may rely as to all mattersalso telephone your request at (505) 241-2211.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of issuance and distribution other than underwriting discounts and commissions, to be paid by PNM are as follows:
| | | | | | |
| | Amount to be Paid | ||||
| SEC Filing Fees | | | | $ | 29,475 | |
| Printing and Engraving Expenses* | | | | | 5,000 | |
| Accounting Fees and Expenses* | | | | | 15,000 | |
| Legal Fees and Expenses* | | | | | 100,000 | |
| Fees and Expenses of Trustee* | | | | | 10,000 | |
| Rating Agency Fees* | | | | | 50,000 | |
| Miscellaneous* | | | | | 5,525 | |
| Total Expenses* | | | | $ | 215,000 | |
| |
| |
|
| * | Estimated. |
Each prospectus supplement will reflect estimated expenses of the Company based upon the amount of the related offering.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indemnification of Directors and Officers.
Section 7 of Article II of Public Service Company of New Mexico'sMexico’s Bylaws contains the following provisions with respect to indemnification of directors and officers:
Each person serving as a director or an officer of the Corporation, or, at the request of the Corporation, as a director or an officer of any other company in which the Corporation has a financial interest and regardless of whether or not the person is then in office, and the heirs, executors, administrators and personal representatives of the person, shall be indemnified by the Corporation to the full extent of the authority of the Corporation to so indemnify as authorized by New Mexico law.
Section 53-11-4.1 of the Business Corporation Act of the State of New Mexico provides that a corporation shall have power to indemnify any person made (or threatened to be made) a party to any proceeding (whether threatened, pending or completed) by reason of the fact that the person is or was a director (or, while a director, is or was serving in any of certain other capacities) if: (1) the person acted in good faith; (2) the person reasonably believed: (a) in the case of conduct in the person'sperson’s official capacity with the corporation, that the person'sperson’s conduct was in its best interests; and (b) in all other cases, that the person'sperson’s conduct was at least not opposed to its best interests; and (3) in the case of any criminal proceeding, the person had no reasonable cause to believe the person'sperson’s conduct was unlawful. Indemnification may be made against judgments, penalties, fines, settlements and reasonable expenses actually incurred by the person in connection with the proceeding, but may be limited or unavailable with respect to certain proceedings. In some instances, indemnification of a director may be mandatory or, upon the application of a director, may be ordered by a court. Reasonable expenses incurred by a director may, under certain circumstances, be paid or reimbursed in advance of a final disposition of a proceeding. Unless limited by its articles of incorporation, a corporation may (or, as the case may be, shall) indemnify and advance expenses to an officer of the corporation to the same extent as to a director under Section 53-11-4.1. Also, unless limited by its articles of incorporation, a corporation has (1) the power to indemnify and to advance expenses to an employee or agent of the corporation to the same extent that it may indemnify and advance expenses to directors under the statute and (2) additional power to indemnify and II-1
furtherfu rther extent, consistent with law, as may be provided by its articles of incorporation, bylaws, general or specific action of its Board of Directors, or contract.
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Section 53-11-4.1 was amended in 1987 to provide that the indemnification authorized thereunder shall not be deemed exclusive of any rights to which those seeking indemnification may be entitled under the articles of incorporation, the by-laws, an agreement, a resolution of shareholders or directors or otherwise. PNM has entered into agreements with each director and officer which provide for indemnification of directors and officers to the fullest extent permitted by law including advancement of litigation expenses where appropriate. The agreements provide for the appointment of a reviewing party by the Board of Directors to make a determination whether claimed indemnification is permitted under applicable law.
Insurance is maintained on a regular basis (and not specifically in connection with this offering) against liabilities arising on the part of directors and officers out of their performance in such capacities or arising on the part of PNM out of its foregoing indemnification provisions, subject to certain exclusions and to the policy limits.
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ITEM
Item 16. EXHIBITS.
Exhibits.
| | | | | | |
| Exhibit Number | | | Exhibit Description | |||
| 1 | .1 | ** | | | Form of Underwriting Agreement for Senior Unsecured Notes. |
| 3 | .1 | * | | | Restated Articles of Incorporation of Public Service Company of New Mexico, as amended through May 31, 2002 (Exhibit 3.1.1 to Quarterly Report on Form 10-Q for the quarter ended June 30, 2002 in File No. 1-6986). |
| 3 | .2 | * | | | Bylaws of Public Service Company of New Mexico with all amendments to and including May 31, 2002 (Exhibit 3.1.2 to Quarterly Report on Form 10-Q for the quarter ended June 30, 2002 in File No. 1-6986). |
| 4 | .1 | * | | | Indenture (for Senior Notes), dated as of August 1, 1998, between Public Service Company of New Mexico and The Chase Manhattan Bank, as trustee (Exhibit 4.1 to Form S-3 No. 33-106079). |
| 4 | .2 | ** | | | Form of Supplemental Indenture establishing Senior Unsecured Notes (with form of note attached). |
| 5 | .1 | *** | | | Opinion of Charles L. Moore, Esq. |
| 5 | .2 | *** | | | Opinion of Troutman Sanders LLP. |
| 12 | .1 | * | | | Statement Regarding Computation of Ratio of Earnings to Fixed Charges (Exhibit 12.2 to Annual Report on Form 10-K for the year ended December 31, 2007 in File No. 1-6986). |
| 23 | .1 | | | | Consent of Deloitte & Touche LLP. |
| 23 | .2 | | | | Consent of Charles L. Moore, Esq. (included in Exhibit 5.1). |
| 23 | .3 | | | | Consent of Troutman Sanders LLP (included in Exhibit 5.2). |
| 24*** | | | Power of Attorney. | |||
| 25*** | | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Trust Company, N.A., as Trustee for the Senior Unsecured Notes. | |||
| |
| |
|
| * | Incorporated herein by reference as indicated. |
| ** | To be filed by an amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of |
| * | Previously filed. |
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Item 17. Undertakings.
| |
| (a) | The undersigned registrant hereby undertakes: |
| | |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| | |
| (i) | To include any prospectus required by Section 10(a)(3) of |
| | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of |
| | |
| (iii) | To include any material information with respect to the plan of |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| | |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| | |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| | |
| (i) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| | |
| (ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registra tion statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
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provided, however, that no statement made in a registration statement relating to the securities
offered therein, and the offering of such securities
ator prospectus that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment anyis part of the securities being
registered which remain unsold atregistration statement or made in a document incorporated or deemed incorporated by reference into the terminationregistration statement or prospectus that is part of the offering.
(4) That, for purposesregistration statement will, as to a purchaser with a time of determiningcontract of sale prior to such effective date, supersede or modify any liability under
the Securities Act of 1933, each filing of the
registrant's Annual Report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of
1934statement that is incorporated by referencewas made in the registration statement shall be deemed to be a newor prospectus that was part of the registration statement relating toor made in the securities
offered herein, and the offering of such securities
atregistration statement or prospectus that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
personswas part of the registrant pursuantregistration statement or made in any such document immediately prior to such effective date.
| |
| (b) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| | |
| (1) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| | |
| (2) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| | |
| (3) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| | |
| (4) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| |
| (c) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
| (d) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connec tion with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue. |
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Albuquerque, State of New Mexico, on June 12, 2003.
PUBLIC SERVICE COMPANY OF NEW
MEXICO
By: /s/ Jeffry E. Sterba
-------------------------------
Jeffry E. Sterba
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, hereby constitutes and appoints Jeffry E. Sterba, John
R. Loyack and Robin Lumney, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments to this registration
statement, including post-effective amendments, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and conforming all that said attorneys-in-fact and agents, and each of them, or
the substitute or substitutes of any or all of them, may lawfully do or cause to
be done by virtue hereof.
April 29, 2008.
| | | | | | |
| | PUBLIC SERVICE COMPANY OF NEW MEXICO | ||||
| | By: | | | /s/ CHARLES N. ELDRED | |
| | | | Charles N. Eldred | ||
| | | | Executive Vice President and Chief Financial Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the datedates indicated.
| | | | |
| Signature | Title | Date | ||
| ||||
| * | Chairman, President and Chief Executive Officer; Director (Principal Executive Officer) | April 29, 2008 | ||
| ||||
| Jeffry E. Sterba | ||||
| ||||
| /s/ CHARLES N. ELDRED | Executive Vice President and Chief (Principal Financial Officer) | April 29, 2008 | ||
| ||||
| Charles N. Eldred | ||||
| ||||
| * | Vice President and |
| April 29, 2008 | ||||
| ||||
| Thomas G. Sategna | ||||
| ||||
| * | Director | April 29, 2008 | ||
| ||||
| Alice A. Cobb | ||||
| ||||
| * | Director | April 29, 2008 | ||
| ||||
| E. James Ferland | ||||
| ||||
| * | Director | April 29, 2008 | ||
| ||||
| Cindy E. McGill | ||||
| ||||
| * | Director | April 29, 2008 | ||
| ||||
| Patricia K. Collawn | ||||
|
| | | |
| By: | | | /s/ CHARLES N. ELDRED |
| | Charles N. Eldred Attorney-in-Fact |
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