Exhibit 4(y)
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This Instrument Contains After-Acquired Property Provisions
This Instrument Grants a Security Interest by a Utility
TEXAS-NEW MEXICO POWER COMPANY
(FORMERLY COMMUNITY PUBLIC SERVICE COMPANY)
To
U.S. BANK TRUST, NATIONAL ASSOCIATION,
TRUSTEE
Twenty-Sixth Supplemental Indenture
Dated as of
_____________________
_____________________
Supplemental to and Modifying
Indenture of Mortgage
and
Deed of Trust
Dated as of November 1, 1944
(as supplemented and modified)
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This Instrument Contains After-Acquired Property Provisions.
__________________
This Instrument Grants a Security Interest by a Utility.
__________________
This is a Security Agreement granting a Security Interest in
Chattels including Chattels affixed to Realty as well as a
Mortgage and Deed of Trust upon Real Estate and Other Property
THIS TWENTY-SIXTH SUPPLEMENTAL INDENTURE, dated as of , 1999, between
Texas-New Mexico Power Company (formerly Community Public Service Company), as
debtor, a Texas corporation (the "COMPANY"), whose mailing address and address
of its principal place of business is 4100 International Plaza, P.O. Box 2943,
Fort Worth, Texas 76113, and U.S. Bank Trust, National Association (successor by
merger to First Trust of Illinois, National Association) (the "TRUSTEE"), (which
is successor trustee to Bank of America Illinois, a banking corporation
organized under the laws of Illinois, which was formerly known, at various
times, as Continental Bank, a banking corporation organized under the laws of
Illinois, Continental Bank, National Association, and Continental Illinois
National Bank and Trust Company of Chicago (the "PREDECESSOR TRUSTEE")), as
Trustee and secured party, and having its principal place of business and
mailing address at 400 North Michigan Avenue, Chicago, Illinois 60611:
WHEREAS, Community Public Service Company, a Delaware corporation the
"PREDECESSOR COMPANY"), has heretofore executed and delivered to the City
National Bank and Trust Company of Chicago (the "ORIGINAL TRUSTEE"), an
Indenture of Mortgage and Deed of Trust dated as of November 1, 1944 (the
"ORIGINAL INDENTURE," capitalized terms used herein and not otherwise defined
herein shall have the same meaning as set forth in the Original Indenture), to
secure as provided therein, its bonds (in the Original Indenture and herein
called the "BONDS") to be designated generally as its "FIRST MORTGAGE BONDS" and
to be issued in one or more series as provided in the Original Indenture; and
WHEREAS, the Predecessor Company has heretofore executed and delivered to
the Original Trustee six indentures supplemental to the Original Indenture,
which supplemental indentures were dated as of March 1, 1947, January 1, 1949,
January 1, 1952, March 1, 1954, June 1, 1957 and June 1, 1961, respectively; and
WHEREAS, simultaneously with the merger of the Predecessor Company into the
Company, the Company has executed and delivered a Seventh Supplemental
Indenture, dated as of May 1, 1963, to Continental Illinois National Bank and
Trust Company of Chicago (into which on September 1, 1961, the Original Trustee
was merged) as Predecessor Trustee; and
WHEREAS, the Company has executed and delivered to the Predecessor Trustee
an Eighth Supplemental Indenture dated as of July 1, 1963; a Ninth Supplemental
Indenture dated as
of August 1, 1965; a Tenth Supplemental Indenture dated as of May 1, 1966; an
Eleventh Supplemental Indenture dated as of October 1, 1969; a Twelfth
Supplemental Indenture dated as of May 1, 1971; a Thirteenth Supplemental
Indenture dated as of July 1, 1974; a Fourteenth Supplemental Indenture dated as
of March 1, 1975; a Fifteenth Supplemental Indenture dated as of September 1,
1976; a Sixteenth Supplemental Indenture dated as of November 1, 1981; a
Seventeenth Supplemental Indenture dated as of December 1, 1982; an Eighteenth
Supplemental Indenture dated as of September 1, 1983; a Nineteenth Supplemental
Indenture dated as of May 1, 1985; a Twentieth Supplemental Indenture dated as
of July 1, 1987; a Twenty-First Supplemental Indenture dated as of July 1, 1989;
a Twenty-Second Supplemental Indenture dated as of January 15, 1992; a Twenty-
Third Supplemental Indenture dated as of September 15, 1993; a Twenty-Fourth
Supplemental Indenture dated as of November 3, 1995 and a Twenty-Fifth
Supplemental Indenture dated as of September 10, 1996;
WHEREAS, pursuant to the Original Indenture, as heretofore supplemented and
modified, there have been executed, authenticated, and delivered $100,000,000 in
original principal amount of First Mortgage Bonds of Series U, 9 1/4% due 2000,
of which $100,000,000 in principal amount remain outstanding; and
WHEREAS, Continental Illinois National Bank and Trust Company of Chicago
changed its name to Continental Bank, National Association, effective December
12, 1988; Continental Bank, National Association changed its name to Continental
Bank, effective June 29, 1994; and Continental Bank changed its name to Bank of
America Illinois effective September 1, 1994; and
WHEREAS, on August 21, 1995 Bank of America Illinois and certain of its
affiliates and First Bank National Association (the parent of First Trust of
Illinois, National Association) and certain of its affiliates, entered into a
Purchase and Assumption Agreement, as supplemented, which provided for the
purchase by the Trustee (or an affiliate) of substantially all of the Illinois
trust and agency appointments of the Predecessor Trustee, including the
appointment under the Original Indenture, as supplemented and modified; and
WHEREAS, on U.S. Bank Trust, National Association acquired
First Trust of Illinois, National Association; and
WHEREAS, pursuant to Section 3-3 of the Illinois Corporate Fiduciary Act
(the "ACT") and the No-Objection letter No. 95-1021 dated July 21, 1995 from the
Illinois Commissioner of Banks and Trust Companies, the sale of the Predecessor
Trustee's corporate trust business to another corporate fiduciary will result in
automatic succession of the transferred accounts pursuant to the provisions of
the Act, provided such succession is not prohibited by the trust instrument's
provisions; and
WHEREAS, the Trustee is qualified and eligible to act as trustee pursuant
to the Original Indenture, as supplemented and modified, and the automatic
succession is not prohibited by the Original Indenture; and
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WHEREAS, to complete the transfer under the Act, the Trustee and the
Predecessor Trustee entered into an Instrument of Transfer and Assignment of
Certain Illinois Appointments dated December 8, 1995 whereby the Trustee became
the trustee under the Original Indenture, as supplemented and modified; and
WHEREAS, it is provided in the Original Indenture, among other things, that
the Company and the Trustee may, and when so required by the Original Indenture
shall, enter into such indentures supplemental thereto as may or shall by them
be deemed necessary or desirable and which shall thereafter form a part thereof
for the purposes, among others, of (a) subjecting to the lien of the Original
Indenture additional property acquired by the Company, (b) providing for the
creation of any new series of Bonds, designating the series to be created and
specifying the form and provisions of the Bonds of such series, (c) providing
for a sinking, amortization, improvement or other analogous funds for the
benefit of all or any of the Bonds of any one or more series, of such character
and of such amount and upon such terms and conditions as shall be contained in
such supplemental indenture; and (d) providing for modifications in the Original
Indenture, subject to certain conditions; and
WHEREAS, the Company has executed and delivered to Chase Bank of Texas,
N.A. (the "SENIOR DEBT TRUSTEE") an indenture dated as of January 1, 1999 (the
"SENIOR DEBT INDENTURE") to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness; and
WHEREAS, the Company is entering into an Indenture supplemental to the
Senior Debt Indenture dated as of [January 1, 1999] (the "FIRST SUPPLEMENTAL
INDENTURE") with the Senior Debt Trustee for the purpose of issuing a series of
securities in an aggregate principal amount of $ to be designated the
" % Senior Notes Due " (the "SENIOR NOTES"); and
WHEREAS, the First Supplemental Indenture requires, as a condition
precedent to the issuance and effectiveness of the Senior Notes, that the
Company issue a new series of First Mortgage Bonds to the Senior Debt Trustee in
an aggregate principal amount of up to $ to secure the payment when
due of the Senior Notes until the RELEASE DATE (as such term is defined in the
First Supplemental Indenture); and
WHEREAS, the agreements of the parties to the First Supplemental Indenture
constitute consideration for the issuance of such First Mortgage Bonds to the
Senior Debt Trustee; and
WHEREAS, the Company desires to, and as required by the First Supplemental
Indenture proposes to, create under the Original Indenture a new issue of First
Mortgage Bonds, to be designated as First Mortgage Bonds, Series X (the "BONDS
OF SERIES X") to be due on , 20 , in an aggregate
principal amount of up to $ and proposes to issue the same upon the
execution of this Twenty-Sixth Supplemental Indenture; and
WHEREAS, it is the intent of the Company and the Senior Debt Trustee that
any payment made in respect to the Company's obligations under the Senior Notes
shall be deemed a payment in respect of the Bonds of Series X and all payments
which are applied to payment of the
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outstanding principal balance of the Senior Notes shall be deemed to be payments
of principal of the Bonds of Series X and the balance of such Bonds of Series X
shall be reduced concurrently with such payment; and
WHEREAS, it is the intent of the Company and the Senior Debt Trustee that
there be no duplication in the obligations paid by the Company under the Senior
Notes and the Bonds of Series X, but the payments, if any, of principal of or
interest on the Bonds of Series X be applied to payment of the Senior Notes and
that the benefits and security of the lien of the Original Indenture, as
supplemented and amended, be extended to the Senior Notes until the Release Date
by means of the issuance and delivery of the Bonds of Series X to the Senior
Debt Trustee for the benefit of the holders of the Senior Notes; and
WHEREAS, the Company is required to execute this Twenty-Sixth Supplemental
Indenture and hereby requests the Trustee to join in this Twenty-Sixth
Supplemental Indenture for the purpose, among others, of (i) creating and
describing the terms of the Bonds of Series X and (ii) subjecting to the lien of
the Original Indenture, as supplemented and modified, additional property (the
"ADDITIONAL PROPERTY") acquired by the Company since the execution and delivery
of the Twenty-Fifth Supplemental Indenture dated as of September 16, 1996 (the
Original Indenture as heretofore supplemented and modified and as supplemented
and modified by this Twenty-Sixth Supplemental Indenture being herein sometimes
called the "INDENTURE"); and
WHEREAS, all acts and proceedings required by law and by the Restated
Articles of Incorporation and By-Laws of the Company necessary to make the Bonds
of Series X, when executed by the Company, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal obligations of the
Company, and to constitute the Indenture a valid and binding mortgage and deed
of trust for the security of all of the First Mortgage Bonds in accordance with
its and their terms, have been done and taken; and the execution and delivery of
this Twenty-Sixth Supplemental Indenture have been in all respects duly
authorized.
NOW, THEREFORE, THIS TWENTY-SIXTH SUPPLEMENTAL INDENTURE, WITNESSETH, that,
in order to secure the payment of the principal of, premium, if any, and
interest on all Bonds at any time issued and outstanding under the Indenture, to
indirectly secure payment of the principal of, premium, in any, and interest on
all Senior Notes at any time issued and outstanding under the Senior Debt
Indenture, according to their tenor, purport and effect, to expressly subject
the Additional Property to the lien of the Indenture, and to secure the
performance and observance of all the covenants and conditions contained in the
Senior Notes and in the Senior Debt Indenture, and to declare the terms and
conditions upon and subject to which the Bonds of Series X are to be issued and
secured, and for the purpose of confirming the lien of the Original Indenture,
as heretofore supplemented and modified, and for and in consideration of the
premises and of the mutual covenants contained in the Indenture and of the
acceptance of the Bonds of Series X by the holders thereof, and of the sum of $1
to the Company paid by the Trustee at or before the execution and delivery
hereof, and for other valuable considerations, the receipt whereof is hereby
acknowledged, the Company has executed and delivered this Twenty-Sixth
Supplemental Indenture, and by these presents does grant, bargain, sell, convey,
assign, transfer,
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mortgage, pledge, hypothecate, set over and confirm unto the Trustee, the
following property, rights, privileges and franchises, to wit:
CLAUSE I.
All the property, real, personal or mixed, tangible or intangible (other
than that Excepted Property as defined in the Granting Clauses of the Original
Indenture) of every kind, character and description which is described in
Article Five hereof.
CLAUSE II.
Without in any way limiting anything in Article Five hereof or hereinafter
described, all and singular the lands, real estate, chattels real, interests in
lands, leaseholds, ways, rights-of-way, easements, servitudes, permits and
licenses, lands under water, riparian rights, franchises, privileges, gas or
electric generating plants, natural gas plants, gas storage plants and
facilities, gas or electric transmission and distribution systems, gas gathering
systems and tap lines, and all apparatus and equipment appertaining thereto,
offices, buildings, warehouses and other structures, machine shops, tools,
materials and supplies and all property of any nature appertaining to any of the
plants, systems, business or operations of the Company, whether or not affixed
to the realty, used in the operation of any of the premises or plants or systems
or otherwise, which are now owned or which may hereafter be owned or acquired by
the Company, other than Excepted Property as defined in the Granting Clauses of
the Original Indenture.
CLAUSE III.
All corporate, Federal, state, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description, now belonging to or
which may hereafter be owned, held, possessed or enjoyed by the Company
(including those described in Article Five hereof and other than Excepted
Property as defined in the Granting Clauses of the Original Indenture) and all
renewals, extensions, enlargements and modifications of any of them.
CLAUSE IV.
Also all other property, real, personal or mixed, tangible or intangible
(other than Excepted Property as defined in the Granting Clauses of the Original
Indenture) of every kind, character and description and wheresoever situated,
whether or not useful in the generation, manufacture, production,
transportation, distribution or sale of gas or electricity, now owned or which
may hereafter be acquired by the Company, it being the intention hereof that all
property, rights and franchises acquired by the Company after the date hereof
(other than Excepted Property as defined in the Granting Clauses of the Original
Indenture) shall be as fully embraced within and subjected to the lien hereof as
if such property were now owned by the Company and were specifically described
herein and conveyed hereby.
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CLAUSE V.
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in anywise
appertaining to any of the property hereby mortgaged or pledged, or intended so
to be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and of every part and parcel thereof, and all the estate,
right, title, interest, property, claim and demand of every nature whatsoever of
the Company at law, in equity or otherwise howsoever, in, of and to such
property and every part and parcel thereof.
CLAUSE VI.
Also any and all property, real, personal, or mixed (including Excepted
Property as defined in the Granting Clauses of the Original Indenture), that
may, from time to time hereafter, by delivery or by writing of any kind, for the
purpose hereof be in anywise subjected to the lien hereof or be expressly
conveyed, mortgaged, assigned, transferred, deposited and/or pledged by the
Company or by anyone in its behalf or with its consent, to and with the Trustee,
which is hereby authorized to receive the same at any and all times as and for
additional security and also, when and as in the Indenture provided, as
substituted security hereunder, to the extent permitted by law. Such
conveyance, mortgage, assignment, transfer, deposit and/or pledge or other
creation of lien by the Company or by anyone in its behalf or with its consent
of or upon any property as and for additional security may be made subject to
any reservations, limitations, conditions and provisions which shall be set
forth in an instrument or agreement in writing executed by the Company or the
person or corporation conveying, assigning, mortgaging, transferring, depositing
and/or pledging the same and/or by the Trustee, respecting the use, management
and disposition of the property so conveyed, assigned, mortgaged, transferred,
deposited and/or pledged, or the proceeds thereof.
EXCEPTED PROPERTY
There is, however, expressly excepted and excluded from the lien and
operation of the Indenture all property specifically excepted under the heading
"EXCEPTED PROPERTY" of the Granting Clauses of the Original Indenture and all
property released or otherwise disposed of pursuant to the provisions of Article
Seven of the Original Indenture.
The Company may, however, pursuant to the provisions of Granting Clause VI
above, subject to the lien and operation of the Indenture, all or any part of
the Excepted Property as defined in the Granting Clauses of the Original
Indenture.
TO HAVE AND TO HOLD the Trust Estate (as defined in Paragraph A of Section
1.06 of the Original Indenture) and all and singular the lands, properties,
estates, rights, franchises, privileges and appurtenances hereby mortgaged,
conveyed, pledged or assigned, or intended so to be, together with all the
appurtenances thereto appertaining, unto the Trustee and its successors and
assigns, forever:
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SUBJECT, HOWEVER, to (i) the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters recited in Article [ ] hereof,
(ii) Permitted Encumbrances as defined in Paragraph G of Section 1.07 of the
Original Indenture, and (iii) with respect to any property which the Company may
hereafter acquire, all terms, conditions, agreements, covenants, exceptions and
reservations expressed or provided in the deeds or other instruments,
respectively, under and by virtue of which the Company shall hereafter acquire
the same and to any liens thereon existing, and to any liens for unpaid portions
of the purchase money placed thereon, at the time of such acquisitions;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit,
security and protection of those who from time to time shall hold the Bonds and
coupons authenticated and delivered under the Indenture and duly issued by the
Company, without any discrimination, preference or priority of any one Bond or
coupon over any other by reason of priority in the time of issue, sale or
negotiation thereof or otherwise, except as provided in Section 10.02 of the
Original Indenture, so that, subject to said Section 10.02 of the Original
Indenture, each and all of said Bonds and coupons shall have the same right,
lien and privilege under the Original Indenture, as heretofore supplemented and
as supplemented by this Twenty-Sixth Supplemental Indenture, and shall be
equally secured thereby and hereby and shall have the same proportionate
interest and share in the Trust Estate, with the same effect as if all of the
Bonds and coupons had been issued, sold and negotiated simultaneously; and in
trust for enforcing payment of the principal of the Bonds and of the premium, if
any, and interest thereon, according to the tenor, purport and effect of the
Bonds and coupons and of the Indenture, and for enforcing the terms, provisions,
covenants and stipulations in the Indenture and in the Bonds set forth;
UPON CONDITION that, until the happening of an Event of Default (as defined
in Section 14.01 of the Original Indenture), the Company shall be suffered and
permitted to possess, use and enjoy the Trust Estate, except money, securities
and other personal property pledged or deposited with or required to be pledged
or deposited with the Trustee under the Indenture, and to receive and use the
rents, revenues, issues, earnings, income, products and profits therefrom:
ARTICLE ONE
BONDS OF SERIES X AND CERTAIN PROVISIONS RELATING THERETO
SECTION 1.01. Terms of Bonds of Series X. There shall be, and hereby is,
created a new series of Bonds, known as and entitled "FIRST MORTGAGE BONDS,
SERIES X, DUE " (herein referred to as the "BONDS OF SERIES X"), and the
form thereof shall be substantially as hereinafter set forth in Section 1.02
hereof. The principal amount of the Bonds of Series X shall not be limited
except as provided in Section 2.01 of the Original Indenture (as amended by
Section 1.01 of the Thirteenth Supplemental Indenture dated as of July 1, 1974)
and except as may be provided in any indenture supplemental thereto. The
definitive Bonds of Series X shall be issued only as registered Bonds without
coupons of the denomination of $1,000 or any multiple thereof, and of such
respective amounts of each of said denominations as may be executed by the
Company and delivered to the Trustee for authentication and delivery.
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The Bonds of Series X shall be registered in the name of the Senior Debt
Trustee or to any successor trustee under the Senior Debt Indenture for the
benefit of the holders of the Senior Notes.
The Bonds of Series X are to be issued to the Senior Debt Trustee to secure
the payment when due of all obligations of the Company under the Senior Notes.
The Bonds of Series X are to be dated as of the date hereof, are to be
issued in the aggregate principal amount of $ and are to mature on [
], 20 . The principal of the Bonds of Series X shall be payable in whole or in
installments on such date or dates as the Company has any obligation to make any
principal payment under the Senior Notes, but not later than [the maturity date
of the Senior Notes]. The Bonds of Series X will have the same stated rates of
interest (and interest shall be calculated in the same manner) and "INTEREST
PAYMENT DATES" (herein so called) as the Senior Notes.
Any payment made in respect to the Company's obligations under the Senior
Notes shall be deemed a payment in respect of the Company's related obligations
under the Bonds of Series X. The obligation of the Company to make payments
with respect to the principal of, premium, if any, and interest on the Bonds of
Series X shall be fully satisfied and discharged to the extent that, at any time
that any such payment shall be due, the Company shall have paid fully the then
due principal of, premium, if any, and interest on, and fees with respect to,
the Senior Notes. Until such time as the Trustee shall have received notice
from the Senior Debt Trustee that an "EVENT OF DEFAULT" under the First
Supplemental Indenture has occurred and is continuing, the Trustee shall be
entitled to assume that all such payments have been made. Any such notice shall
provide the Trustee with information on the principal and interest payments due
thereafter on the Bonds of Series X. Any payments of the principal of, premium,
if any, and the interest on the Bonds of Series X shall be payable, in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, at the principal
office of the Trustee in the City of Chicago, State of Illinois. Interest on
Bonds of Series X shall be payable in each case to the holder of record on the
record date as set forth below.
On the Release Date, the Bonds of Series X shall be surrendered to the
Company pursuant to the terms of the First Supplemental Indenture and the
Company's obligations under the Bonds of Series X from the Release Date forward
shall be discharged and deemed satisfied.
The definitive Bonds of Series X may be issued in the form of Bonds
engraved, printed, lithographed on steel engraved borders or typed on safety
paper.
The person in whose name any Bond of Series X is registered at the close of
business on any record date (as hereinbelow defined) with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such Bond of Series X
upon any transfer or exchange thereof (including any exchange effected as an
incident to a partial redemption thereof) subsequent to the record date and
prior to such interest payment date, except that, if and to the extent that the
Company defaults in the payment of the interest due on such interest payment
date, then the registered holders of Bonds of Series X on
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such record date shall have no further right to or claim in respect of such
defaulted interest as such registered holders on such record date, and the
persons entitled to receive payment of any defaulted interest thereafter payable
or paid on any Bonds of Series X shall be the registered holders of such Bonds
of Series X on the record date for payment of such defaulted interest. The term
"RECORD DATE" as used in this Section 1.01, and in the form of the Bonds of
Series X, with respect to any interest payment date applicable to the Bonds of
Series X, shall mean the date fifteen days prior to such interest payment date
(or the preceding business day if a holiday or other day on which the office of
the Trustee is closed), or such record date established for defaulted interest
as hereinafter provided.
Subject to the provisions of Section 2.11 of the Original Indenture, all
definitive Bonds of Series X, upon surrender at the principal office of the
Trustee, shall be exchangeable for other Bonds of Series X of a different
denomination or denominations, as requested by the holder surrendering the same.
The Company shall execute, and the Trustee shall authenticate and deliver, Bonds
of Series X whenever the same shall be required for any such exchange.
Notwithstanding the provisions of Section 2.11 of the Original Indenture,
no charge shall be made for any exchange of Bonds of Series X for other Bonds of
Series X of different authorized denominations or for any transfer of Bonds of
Series X, except that the Company at its option may require the payment of a sum
sufficient to reimburse it for any stamp tax or other governmental charge
incident thereto.
The Bonds of Series X shall be redeemed by the Company in whole at any time
prior to maturity at a redemption price of 100% of the principal amount to be
redeemed, plus any accrued and unpaid interest to the redemption date, but only
if the Trustee shall receive a written demand from the Senior Debt Trustee for
redemption of all Bonds of Series X held by the Senior Debt Trustee stating that
an "EVENT OF DEFAULT" under the First Supplemental Indenture has occurred and is
continuing and that payment of the principal amount outstanding under the Senior
Notes, all interest thereon and all other amounts payable thereunder are
immediately due and payable and demanding payment thereof; provided, however,
that the Bonds of Series X shall not be redeemed in the event that prior to the
date of such redemption the Trustee shall have received a certificate of the
Senior Debt Trustee (a) stating that there has been a waiver of such Event of
Default, or (b) withdrawing said written demand. The redemption of the Bonds of
Series X shall be made forthwith upon receipt of such demand by the Company from
the Senior Debt Trustee on behalf of the holders of the Senior Notes or the
Trustee.
The Trustee hereunder shall, by virtue of its office as such Trustee, be a
paying agent of the Company for the purpose of the payment of the principal of
and premium, if any, and interest on the Bonds of Series X and the registrar and
transfer agent of the Company for the purpose of registering and transferring
Bonds of Series X. Neither the Company nor the Trustee shall be required to
make transfers or exchanges of Bonds of Series X for a period of ten days next
preceding the mailing of notice of redemption of Bonds of Series X to be
redeemed and neither the Company nor the Trustee shall be required to make
transfers or exchanges of any Bonds of Series X designated in whole for
redemption or that part of any Bond of Series X designated in part for
redemption.
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SECTION 1.02. Form of Bonds of Series X. The Bonds of Series X shall be
in substantially the following form:
THIS BOND IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR TRUSTEE UNDER THE
INDENTURE DATED JANUARY 1, 1999, AS SUPPLEMENTED, BETWEEN TEXAS-NEW MEXICO
POWER COMPANY AND CHASE BANK OF TEXAS, N.A., TRUSTEE
[FORM OF BOND OF Series X]
No. X $
TEXAS-NEW MEXICO POWER COMPANY
First Mortgage Bond, Series X, % Due 20
Texas-New Mexico Power Company, a Texas corporation (hereinafter called the
"Company"), for value received, hereby promises to pay to Chase Bank of Texas,
N.A. as Senior Debt Trustee (as hereinafter defined) under the Senior Debt
Indenture (as hereinafter defined), or to any successor Trustee under the Senior
Debt Indenture, Million Dollars ($ ) or such lesser amount
as is equal to the aggregate principal amount of the outstanding Senior Notes
(as defined in the First Supplemental Indenture hereinafter defined), in whole
or in installments on such date or dates as the Company has any obligation to
make payments under the First Supplemental Indenture, but not later than the
Maturity Date (as defined in the First Supplemental Indenture), and to pay
interest on the unpaid principal amount hereof to the registered owner hereof at
such rate per annum on each interest payment date (as hereinafter defined) and
at maturity as shall cause the amount of interest payable on such interest
payment date (as hereinafter defined) on this Bond to equal the amount of
interest and fees payable on such interest payment date (as hereinafter defined)
under the First Supplemental Indenture as provided below.
The principal of, premium, if any, and interest on this Bond are payable at
the principal corporate trust office mentioned on the reverse hereof of First
Trust of Illinois, National Association (the "Trustee"), or its successor in
trust under the Indenture (as hereinafter defined), in the City of Chicago,
Illinois, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.
The Bonds of Series X have been issued to the Senior Debt Trustee in
connection with the issuance of the Senior Notes, to secure the payment when due
of all obligations of the Company under the Senior Notes issued under an
indenture supplemental (the "First Supplemental Indenture") to the Original
Senior Debt Indenture (hereinafter defined) with the Senior Debt Trustee for the
purpose of issuing a series of securities in an aggregate principal amount of
$ to be designated the " % Senior Notes Due "
(the "Senior Notes"). The Company has executed and delivered to Chase Bank of
Texas, N.A. (the "Senior Debt Trustee") an indenture dated as of January 1, 1999
(the "Original Senior Debt Indenture" and
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together with the First Supplemental Indenture, the "Senior Debt Indenture") to
provide for the issuance from time to time of its debentures, notes, bonds or
other evidences of indebtedness.
The interest on this Bond shall be payable on the same dates (each, an
"interest payment date") as interest is payable from time to time pursuant to
the Senior Notes until maturity of this Bond, or until the occurrence of the
Release Date, or, if the Company defaults in the payment of principal due on
this Bond, until such principal and interest shall have been paid in full and
the Company's obligations with respect thereto discharged as provided in the
Indenture (as hereinafter defined). The amount of interest payable from time to
time under the Senior Notes, the basis on which such interest is computed and
the dates on which such interest is payable are set forth in the First
Supplemental Indenture.
Any payment of the principal of, premium, if any, and interest made in
respect of the Company's obligations under the Senior Notes shall be deemed a
payment in respect of the respective obligations under the Bonds of Series X.
The obligation of the Company to make payments with respect to the principal of,
premium, if any, and interest on the Bonds of Series X shall be fully satisfied
and discharged to the extent that, at any time that any such payment shall be
due, the Company shall have paid fully the then due principal of, premium, if
any, and interest on, the Senior Notes.
On the Release Date (as defined in the First Supplemental Indenture), and
subject to the terms and conditions of the First Supplemental Indenture, this
Bond shall be surrendered to the Company and the Company's obligations hereunder
from the Release Date forward shall be discharged and deemed satisfied.
This Bond shall not become or be valid or obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee.
The provisions of this Bond are continued on the reverse hereof and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
In Witness Whereof, Texas-New Mexico Power Company has caused this Bond to
be executed in its corporate name by the manual or facsimile signature of its
President or one of its Vice Presidents and its corporate seal to be impressed
or imprinted hereon, attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries, and this Bond to be dated.
Texas-New Mexico Power Company,
By:
----------------------------
President
Attest:
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- -------------------------
Secretary
(Seal)
Date of Authentication: ___________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned Indenture.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION, as Trustee
------------------------------------
Authorized Officer
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[FORM OF REVERSE OF BOND OF SERIES X]
This Bond is one of an authorized issue of Bonds of the Company known as
its "First Mortgage Bonds," limited as provided in the Indenture hereinafter
mentioned, issued and to be issued in one or more series under, and all equally
and ratably secured (except as any sinking, amortization, improvement, renewal,
replacement or other analogous fund established under the Indenture hereinafter
mentioned, may afford additional security for the Bonds of any particular
series) by an Indenture of Mortgage and Deed of Trust dated as of November 1,
1944, executed to City National Bank and Trust Company of Chicago, as to which
Continental Illinois National Bank and Trust Company of Chicago (which later
changed its name to Continental Bank, National Association, then to Continental
Bank, a banking corporation organized under the laws of Illinois, and then to
Bank of America Illinois, a banking corporation organized under the laws of
Illinois, who was succeeded by First Trust of Illinois, National Association),
as successor trustee, as Trustee, as supplemented by twenty-five supplemental
indentures thereto, including the Thirteenth, Fourteenth, Fifteenth, Sixteenth,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second,
Twenty-Third, Twenty-Fourth and Twenty-Fifth Supplemental Indentures which also
modified the Original Indenture and the Twenty-Sixth Supplemental Indenture (the
"Twenty-Sixth Supplemental Indenture") dated as of January 1, 1999 (said
Indenture of Mortgage and Deed of Trust, as so supplemented and modified, being
herein called the "Indenture"), to which Indenture reference is hereby made for
a description of the properties mortgaged and pledged, the nature and extent of
the security, the rights of the holders of the Bonds and the appurtenant coupons
and of the Trustee and of the Company in respect of such security, and the terms
and conditions upon which the Bonds are and are to be secured.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than seventy-five per cent in
principal amount of the Bonds (exclusive of Bonds disqualified by reason of the
Company's interest therein) at the time outstanding, including, if more than one
series of Bonds shall be at the time outstanding, not less than sixty per cent
in principal amount of each series affected, to execute supplemental indentures
amending the Indenture; provided, however, that no such supplemental indenture
shall extend the fixed maturity of this Bond or reduce the rate or extend the
time of payment of interest hereon or reduce the amount of the principal hereof
or reduce any premium payable on the redemption hereof, without the consent of
the holder hereof.
As provided in the Indenture, the Bonds are issuable in Series which may
vary as in the Indenture provided or permitted. This Bond is one of a series
entitled "First Mortgage Bonds, Series X, due " (hereinafter called the
"Bonds of Series X").
Bonds of this series may, upon surrender thereof at the principal office of
the Trustee, be exchanged for several Bonds of the same series for a like
aggregate principal amount in authorized denominations; and several Bonds of
this series, registered in the same name, may, upon surrender thereof at said
principal office of the Trustee, be exchanged for one Bond of the same series
for a like aggregate principal amount in authorized denominations. No charge
shall be made for any exchange of Bonds of this series for other Bonds of
different authorized denominations or
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for any transfer of this Bond, except that the Company at its option may require
the payment of a sum sufficient to reimburse it for any stamp tax or other
governmental charge incidental thereto.
The Company and the Trustee may deem and treat the person in whose name
this Bond shall be registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other purposes, whether or not
this Bond shall be overdue; and all such payments shall be valid and effectual
to satisfy and discharge the liability upon this Bond to the extent of the sum
or sums so paid.
If an event of default as defined in the Indenture shall occur, the
principal of all the Bonds of Series X may become or be declared due and payable
upon the conditions and in the manner and with the effect provided in the
Indenture and the First Supplemental Indenture.
No recourse shall be had for the payment of the principal of or the
interest on this Bond or for any claim based hereon or otherwise in respect
hereof or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty, or otherwise, all such liability being by the acceptance hereof and as
part of the consideration for the issue hereof expressly waived and released, as
provided in the Indenture; provided, however, that nothing herein or in the
Indenture contained shall be taken to prevent recourse to and the enforcement of
the liability, if any, of any shareholder or any stockholder or subscriber to
capital stock upon or in respect of shares of capital stock not fully paid.
This Bond is nontransferable except to effect transfer to any successor to
the Senior Debt Trustee under the First Supplemental Indenture, but is
exchangeable by the registered holder hereof, in person or by attorney duly
authorized, at the corporate trust office of the Trustee, any such permitted
transfer or exchange to be made in the manner and upon the conditions prescribed
in the Indenture, upon the surrender and cancellation of this Bond and the
payment of any applicable taxes and fees required by law, and upon any such
transfer or exchange a new registered bond or bonds or the same series and
tenor, will be issued to the authorized transferee, or the registered holder, as
the case may be.
Upon notice being given of the redemption of all or part of the Senior
Notes in accordance with the Senior Debt Indenture and such Senior Notes
becoming due and payable in accordance with such notice of redemption, the
Company shall redeem, on the redemption date specified in such notice a
principal amount of Bonds of Series X equal to the principal amount of Senior
Notes to be redeemed, at a redemption price equal to the principal amount of
such Bonds of Series X to be redeemed, plus a premium, if any, equal to the
premium payable on the redemption of such Senior Notes, if any, plus accrued
interest to such redemption date.
Upon payment by the Company of principal, premium, if any, and interest in
satisfaction of amounts due and payable in accordance with such notice of
redemption of all or part of the Senior Notes, as the case may be, the Company's
obligations to make payment with respect to the
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amounts due and payable with respect to the principal amount of Bonds of Series
X to be redeemed shall be satisfied.
The Company covenants that, prior to the Release Date, it will not take any
action that would cause the outstanding principal amount of the Bonds of Series
X to be less than the then outstanding principal amount of the Senior Notes.
ARTICLE TWO
AMOUNT OF BONDS OUTSTANDING
The aggregate principal amount of Bonds of the Company outstanding and
presently to be issued and outstanding under the provisions of, and secured by
the Indenture, will be $ consisting of $100,000,000 principal amount
of First Mortgage Bonds, Series U, 9 1/4% due 2000, due September 15, 2000 and
$ principal amount of First Mortgage Bonds, Series X, due , due
to be issued pursuant to Article Four of the
Original Indenture as provided for in this Twenty-Sixth Supplemental Indenture.
Additional Bonds of Series U and X and of subsequent series created after
the execution and delivery of this Twenty-Sixth Supplemental Indenture, may,
from time to time, be authenticated, delivered and issued pursuant to the terms
of the Indenture.
ARTICLE THREE
ADDITIONAL COVENANTS OF COMPANY
The Company covenants and agrees with the Trustee, for the benefit of the
Trustee and all the present and future holders of the Bonds, that the Company
will pay the principal of, premium, if any, and interest on all Bonds issued or
to be issued and secured by the Indenture, as well as all Bonds which may be
hereafter issued in exchange or substitution therefor, and will perform and
fulfill all of the terms, covenants and conditions of the Original Indenture,
with respect to the additional Bonds to be issued under the Indenture.
ARTICLE FOUR
MISCELLANEOUS
This instrument is executed and shall be construed as an indenture
supplemental to the Original Indenture as heretofore supplemented and shall form
a part thereof, and the Original Indenture as heretofore supplemented is hereby
confirmed.
The recitals in this Twenty-Sixth Supplemental Indenture are made by the
Company only and not by the Trustee; and all of the provisions contained in the
Original Indenture in respect of
15
the rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Although this Twenty-Sixth Supplemental Indenture is dated for convenience
and for the purpose of reference as of [ ], 1999, the actual date or dates of
execution thereof by the Company and the Trustee are as indicated by their
respective acknowledgments hereto annexed.
In order to facilitate the recording or filing of this Twenty-Sixth
Supplemental Indenture, the same may be simultaneously executed in several
counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
ARTICLE FIVE
FIRST
Land
The following described lots, pieces, or parcels of land acquired by the
Company since the execution and delivery of the Twenty-Fifth Supplemental
Indenture dated as of September 10, 1996, are located in the States and in the
Counties designated and hereinafter set forth:
FOURTH
Franchises
All and singular, the corporate, federal, state, municipal and other
franchises, permits, consents, licenses, grants, immunities, privileges, and
rights owned by the Company and now held by the Company for the construction,
maintenance, and operation of electric light, heat, and power plants and
systems; for the construction, maintenance; as well as all franchises, grants,
immunities, privileges, and rights of the Company used or useful in the
operation of the Trust Estate, including all and singular the franchises,
grants, immunities, privileges, and rights of the Company granted by the
governing authorities of the cities and towns enumerated in the schedule below,
and by all other municipalities or political subdivisions, and all renewals,
extensions, and modifications of said franchises, grants, privileges, and
rights, or any of them, including:
- -------------------------------------------------------------------------------
| THE FOLLOWING DESCRIPTIONS ARE TO BE UPDATED AND PROVIDED BY TNP. |
- -------------------------------------------------------------------------------
A. STATE OF NEW MEXICO
Municipality Expiration Date
------------ ---------------
Dona Ana County November 1, 2019
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B. STATE OF TEXAS
Municipality Expiration Date
------------ ----------------------------
Alvin Extended to October 21, 1996
Cross Roads May 28, 2026
Nocona Extended to April 8, 2015
Texas City Extended to March 31, 1999
IN WITNESS WHEREOF, TEXAS-NEW MEXICO POWER COMPANY has caused this Twenty-
Sixth Supplemental Indenture to be signed in its corporate name by its President
or a Vice President and its corporate seal to be hereunto affixed and attested
by its Secretary or an Assistant Secretary, and, in token of its acceptance of
the trust created hereby, First Trust of Illinois, National Association has
caused this Twenty-Sixth Supplemental Indenture to be signed in its corporate
name by one of its Vice Presidents and its corporate seal to be hereunto affixed
and attested by one of its Assistant Secretaries, all as of the day and year
first above written.
TEXAS-NEW MEXICO POWER COMPANY,
(Corporate Seal) By:
----------------------------------------
M. S. Cheema
Senior Vice President
Attest:
B. Jan Adkins
Assistant Secretary
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION,
as Trustee
(Corporate Seal)
By:
----------------------------------------
Vice President
Attest:
- ------------------------
Assistant Secretary
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STATE OF TEXAS (S)
(S) ss.:
COUNTY OF TARRANT (S)
On this day of , 1999, before me, ,
Notary Public in and for the County and State aforesaid, personally appeared
M. S. Cheema, to me personally known, and known to me to be the person whose
name is subscribed to the foregoing instrument and known to me to be Senior Vice
President of Texas-New Mexico Power Company, a Texas corporation, who being by
me duly sworn, did say that he resides in Weatherford, Texas, that he is Senior
Vice President of said Texas-New Mexico Power Company and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said M. S. Cheema acknowledged said instrument to be
the free act and deed of said corporation, and acknowledged to me that he
executed said instrument for the purposes and consideration therein expressed
and as the act of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office this
day of , 1998.
----------------------------------
(NOTARIAL SEAL)
18
STATE OF ILLINOIS (S)
(S) ss.:
COUNTY OF COOK (S)
On this day of , 1999, before me, ,
Notary Public in and for the County and State aforesaid, personally appeared,
to me personally known, and known to me to be the person whose name is
subscribed to the foregoing instrument and known to me to be a Vice President of
First Trust of Illinois, National Association, who, being by me duly sworn, did
say that he resides in Chicago, Illinois; that he is a Vice President of said
First Trust of Illinois, National Association, and that the seal affixed to said
instrument is the corporate seal of said banking corporation, and that said
instrument was signed and sealed in behalf of said association by authority of
its Board of Directors; and said , acknowledged said instrument to be the free
act and deed of said association, and acknowledged to me that he executed said
instrument for the purposes and consideration therein expressed and as the act
of said association.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office this
day of , 1999.
----------------------------------
(NOTARIAL SEAL)
19
STATE OF TEXAS (S)
(S) ss.:
COUNTY OF TARRANT (S)
M. S. Cheema, being duly sworn, deposes and says:
1. That he is Senior Vice President of Texas-New Mexico Power Company, a
Texas corporation, one of the corporations described in, and which executed the
foregoing instrument, and is one of the officers who executed the foregoing
instrument in behalf of Texas-New Mexico Power Company.
2. That Texas-New Mexico Power Company, one of the corporations which
executed the aforementioned instrument, is a corporation engaged in the States
of Texas and New Mexico in the generation, purchase, transmission, distribution
and sale of electricity to the public and, consequently, is a utility as
described in Section 35.01, Texas Business and Commerce Code, Revised Civil
Statutes of Texas.
Subscribed and sworn to before me
this day of , 1999.
----------------------------------
(NOTARIAL SEAL)
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